"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 defined as persons below the age of 18 years (Convention on the Rights of the Child, Art. 1). They differ from adults for their physical and emotional development and their specific needs, which require special protection.
Deprivation of liberty for children should be used only as a measure of last resort and a variety of 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 should aim at rehabilitating and reintegrating children into society.
Children are one of the most vulnerable groups in detention, because of their age and stage of maturity, and the long term damaging effects of detention on their well-being and development. Detention rarely responds to children’s individual characteristics and specific needs, including the need for appropriate education, contact with family and the wider community, sport and recreation. Contrarily, it often intensifies children’s vulnerability to discrimination, abuse, violence, poor living conditions, 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: for accompanying a parent seeking asylum in another country, due to physical and mental disabilities, or for status offences which are not criminalised if committed by adults, such as living in the streets, begging, violating curfew regulations or for substance abuse problems. Such behaviours are often the result of 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 clearly 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 their liberty are held in pre-trial detention, often for prolonged periods, and for minor offences, in breach with international standards which establish that 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 several countries, children’s behaviours which do not conform to the conventional ones are stigmatised by both authorities and the society at large. Such stigmatisation often leads to arbitrary arrest of children, and exposes them to abusive and discriminatory practice by the police. In many circumstances, at the moment of arrest children are not provided with information on their rights and the allegations against them in a manner that they can understand. Following the arrest children may not have prompt access to their parents or caregivers and to legal assistance, which put 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 their liberty should be separated from adults “unless it is considered in the child’s best interest not to do so” (CRC, Art. 37 (c)), many countries fail to abide by this rule. As a result, children are often deprived of their liberty with adults during transportation, in police stations and in detention centres, exposing them to abuse and compromising their future ability to remain free of crime and to reintegrate into society. Children are at risk of abuse, bullying and violation of their rights also when those awaiting trial are held alongside with 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 the duty to ensure that disciplinary measures and means of restraint are used only for the maintenance of safety. Those measures which constitute cruel, inhuman or degrading treatment or may compromise the well-being of the child should be strictly prohibited, including denial of contact with family, corporal punishment and solitary confinement. In order to prevent abuse and ill-treatment of children in detention, States should also ensure that staff working with children is specialised 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 which they are exposed to vary according to a number of factors, such as age, stage of development, gender, physical or mental disability, substance abuse, prior experience of violence and exploitation, 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 in detention, due to their age, gender and small numbers, and specific measures should be taken to meet their needs.
- United Nations' Convention on the Rights of the Child, September 1990
- UN Standard Minimum Rules for the Administration of Juvenile Justice: the “Beijing Rules”, November 1985
- UN Rules for the Protection of Juveniles Deprived of their Liberty: the “Havana Rules”, December 1990
- 24th General Report of the Eureopan Committee for the prevention of torture, 1st 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, 18 September 2019
- UN Guidelines for the Prevention of Juvenile Delinquency: the “Riyadh Guidelines”
- Protecting children’s rights in criminal justice systems, Penal Reform International (PRI), 2013
- Neglected needs: Girls in the criminal justice system, Penal Reform International (PRI) and Interagency Panel on Juvenile Justice (IPJJ), 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, UN Doc. A/HRC/21/25, 27 June 2012
- Special Representative of the Secretary- General on Violence against Children, Safeguarding the rights of girls in the criminal justice system.Preventing violence, stigmatization and deprivation of liberty, 2015
- Inter-American Commission on Human Rights, Juvenile Justice and Human Rights in the Americas, 2011
- The impact of distance from home on children in custody, Thematic report by 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
- Center for Human Rights & Humanitarian Law & Anti-torture Initiative, Protecting Children Against Torture in Detention: Global Solutions for a Global Problem, May 2017
- HM Inspectorate of Prisons, Youth Justice Board, Children in Custody 2017-18, An analysis of 12–18-year-olds’ perceptions of their experiences in secure training centres and young offender institutions, UK, 2019
- UNGA, Global study on children deprived of liberty, A/74/136, 11 July 2019