Children are defined as persons below the age of 18 years (Convention on the Rights of the Child, Art. 1). They differ from adults in their physical and emotional development. They also have specific needs, which require special protection.
Deprivation of liberty for children should be used only as a measure of last resort. Alternative measures to deprivation of liberty should be available for children to ensure their well-being. When detention is absolutely necessary, it should be used for the shortest appropriate period of time and aim to rehabilitate and reintegrate the child into society.
"Deprivation of liberty means deprivation of rights, agency, visibility, opportunities and love.
Depriving children of liberty is depriving them of their childhood."
Global study on children deprived of liberty, 2019
Children are one of the most vulnerable groups in detention because of their age and stage of maturity. Detention also has long-term damaging effects on their well-being and development. Detention rarely responds to a child's individual characteristics and their specific needs, including their need for appropriate education, contact with family and the wider community, and sport and recreation. In fact, it often intensifies their vulnerability to discrimination, abuse, violence, poor living conditions, and inadequate health care and nutrition.
Children are deprived of their liberty for a variety of reasons. They are often detained for being suspected or accused of having committed a crime, but also for other reasons such as accompanying a parent seeking asylum in another country; for issues related to physical and mental disabilities; or for status offences that are not criminalised if committed by adults, such as living on the streets, begging, violating curfew regulations or substance abuse problems. Such behaviours are often the result of their disadvantaged socio-economic status or psychological problems and “should be dealt with through the implementation of child protective measures, including effective support for parents and/or caregivers and measures which address the root causes of this behaviour” (Committee on the Rights of the Child, General Comment No. 10).
International standards establish that every child in conflict with the law must be treated in accordance with the rules of juvenile justice and that children can be arrested only if they have reached the minimum age of criminal responsibility, which should not be lower than 12 years.
The majority of children deprived of liberty are held in pre-trial detention, often for prolonged periods, and for minor offences, in breach of international standards that establish detention should be used as a measure of last resort, for the shortest appropriate period of time and only for child offenders who are considered as posing a real danger to others.
Children deprived of their liberty are at greater risk of experiencing discrimination and abuse by both staff and fellow detainees, from the first moment of contact with the criminal justice system. When deprived of their liberty, they are also at risk of self-harm or even suicide.
In some countries, children can be stigmatised by authorities and the society at large for behaviours that do not conform to conventional ones. Such stigmatisation can lead to arbitrary arrest of these children and expose them to abusive and discriminatory practices by the police. When they are arrested, children are commonly not provided with information on their rights and the allegations against them in a manner that they can understand. Following their arrest, children may not have prompt access to their parents or caregivers and to legal assistance, which puts them at greater risk of physical, verbal and psychological violence, especially during interrogations.
The risk of abuse and ill-treatment by both staff and other detainees is also present in pre-trial detention and when executing a sentence. Although international standards provide that children deprived of liberty should be separated from adults “unless it is considered in the child’s best interest not to do so” (Convention on the Rights of the Child, Art. 37 (c)), many countries fail to uphold this standard. As a result, children are often detained with adults during transportation, in police stations and in detention centres. Children are also at risk of abuse, bullying and violation of their rights when those awaiting trial are held alongside convicted children, when boys are detained with girls, when younger children are detained with older ones, and when the placement of children in a detention facility does not take into account the specific requirements of the most vulnerable children (e.g. children with physical and mental disabilities).
In many instances, children deprived of their liberty are subject to violent and unlawful disciplinary measures. States have a duty to ensure that disciplinary measures and means of restraint are used only to maintain safety. Measures that constitute cruel, inhuman or degrading treatment, and those that compromise the well-being of the child - including denial of contact with family, corporal punishment and solitary confinement - should be strictly prohibited. In order to prevent abuse and ill-treatment of children in detention, States should also ensure there are specialised staff working with children and that children in detention have access to child-friendly complaints mechanisms.
Children deprived of their liberty are not a homogenous group. Their needs, and the risks they are exposed to, will vary according to a number of factors, including age stage of development, gender, physical or mental disability, substance abuse, prior experience of violence and exploitation, and level of education. Therefore, it is vital that the specific characteristics of children deprived of liberty are assessed and that they receive individual care and treatment according to their needs. Girls deprived of their liberty are in a situation of particular vulnerability, due to their age, gender and small numbers, and specific measures should be taken to meet their needs.
- UN Convention on the Rights of the Child; September 1990
- UN Standard Minimum Rules for the Administration of Juvenile Justice (“Beijing Rules”); November 1985
- UN Rules for the Protection of Juveniles Deprived of their Liberty (“Havana Rules”); December 1990
- 24th General Report of the European Committee for the prevention of torture; 1 August 2013-31 December 2014
- Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment of punishment, A/HRC/28/68; 5 March 2015
- Recommendation CM/Rec(2018)5 of the Committee of Ministers to Member States concerning children with imprisoned parents, Council of Europe; 4 April 2018
- Committee on the Rights of the Child, General Comment No. 24 (2019) on children’s rights in the child justice system, CRC/C/GC/24
- Committee on the Rights of the Child, General Comment No. 10 (2007) on children’s rights in juvenile justice, CRC/C/GC/10
- UN Guidelines for the Prevention of Juvenile Delinquency (“Riyadh Guidelines”)
- Protecting children’s rights in criminal justice systems; Penal Reform International; 2013
- Neglected needs: Girls in the criminal justice system; Penal Reform International and Interagency Panel on Juvenile Justice; 2014
- United Nations Model Strategies and Practical Measures on the Elimination of Violence against Children in the Field of Crime Prevention and Criminal Justice (A/C.3/69/L.5); 25 September 2014
- Joint report of the Office of the High Commissioner for Human Rights, the United Nations Office on Drugs and Crime and the Special Representative of the Secretary-General on violence against children on prevention of and responses to violence against children within the juvenile justice system (A/HRC/21/25); 27 June 2012
- Safeguarding the rights of girls in the criminal justice system: Preventing violence, stigmatization and deprivation of liberty; Special Representative of the Secretary-General on violence against children; 2015
- Juvenile Justice and Human Rights in the Americas; Inter-American Commission on Human Rights; 2011
- The impact of distance from home on children in custody; HM Inspectorate of Prisons; October 2016
- Juveniles deprived of their liberty under criminal legislation, extract from the 24th General Report of the CPT, published in 2015, CPT/Inf(2015)1-part
- Protecting Children Against Torture in Detention: Global Solutions for a Global Problem; Center for Human Rights & Humanitarian Law & Anti-torture Initiative; May 2017
- Children in Custody 2017-18, An analysis of 12–18-year-olds’ perceptions of their experiences in secure training centres and young offender institutions; HM Inspectorate of Prisons; 2019
- UN General Assembly Global Study on Children Deprived of Liberty (A/74/136): 11 July 2019