Five strategies for protecting children in detention: Child Protection in the age of COVID-19
Why this is important!
The right to personal liberty is one of the most enduring and important of all human rights, yet every year more than 400,000 children worldwide are held in juvenile detention facilities and prisons. Releasing girls and boys from detention is a public health priority for COVID-19, for the simple reason that the pandemic will most likely spread much more rapidly in confined spaces, whether they be nursing homes for the elderly, orphanages for the young, prisons for adult male and female offenders or detention facilities for child offenders. UNICEF and the Alliance for Child Protection in Humanitarian Action are calling on all governments everywhere to act decisively, and have released a Technical Note: Protection of Children during the COVID-19 Pandemic, which provides a framework for ensuring that the ”human rights of every child who is deprived of her or his liberty are fully respected, protected and fulfilled”. This blog outlines five strategies for protecting children in detention in developing countries. The strategies are: 1) Coordinated advocacy by UN and child protection agencies at the country level; 2) Shutting the gate to prevent new admissions into detention; 3) Prohibiting pre-trial detention, and promoting conditional (early) release and the fast tracking of parole and parole processes; 4) Reducing overcrowding; and 5) Providing effective post release support to children.
While international law allows for adults to be lawfully detained for a variety of reasons and even for extensive periods of time, Article 37 (b) of the Convention on the Rights of the Child (CRC) stipulates much stricter limits for children. This is because the negative effects of detention on children are amplified compared to the effects on adults. The need to ensure that children are only detained for the shortest possible time and only as an option of last resort was reinforced by the UN Secretary General’s recent study, which found that the detention of children is directly harmful to their mental and physical health. Yet, surprisingly, while many jurisdictions are releasing adults from prisons where the coronavirus poses a threat, efforts to free juveniles from detention have met resistance, as reported by the New York Times, 14 April 2020.
According to the World Health Organisation, children who are deprived of their liberty, are particularly vulnerable because they often have compromised psychosocial, physical and mental health issues, live in crowded or unhygienic conditions and are more vulnerable to abuse and neglect. Overcrowding along with violence are two critical health issues for children in detention.
This week, UNICEF Executive Director Henrietta Fore noted that: “Many [children] are being held in confined and overcrowded spaces with inadequate access to nutrition, healthcare and hygiene services – conditions that are highly conducive to the spread of diseases like COVID-19. An outbreak in one of these facilities could happen at any moment.”
Deprivation of liberty can occur throughout the life-cycle of a child. It can begin in residential care institutions such as orphanages, followed by various institutions for educational purposes and drug rehabilitation until ending in imprisonment. In such situations, re-offending usually follows. At its core, deprivation of liberty means depriving children, girls and boys, of their rights, agency, visibility, opportunities and love.
Because of the diabolical threat caused by the pandemic, the Alliance for Child Protection in Humanitarian Action and UNICEF have released a Technical Note: Protection of Children during the COVID-19 Pandemic. Drawing from lessons learned from previous infectious disease outbreaks, the Technical Note details the risks COVID-19 poses to children in detention and proposes a series of measures to prevent and control its spread. It calls on all countries to deliver on their commitments as parties to the CRC to ensure all children deprived of their liberty have their rights protected – including the right to life which this pandemic is surely challenging. Specifically, it calls on all countries to close the gate on new children entering detention; to release all children who can be safely released (those who are not a risk to themselves or to others); and to ramp up efforts to protect those children who cannot be released and who will remain in detention.
The Technical Note is a valuable tool for UN agencies, child protection and broader civil society organisations to use in shaping their advocacy efforts to protect children in detention from the pandemic. While these advocacy efforts can take many forms, here are five possible strategies.
One: Coordinated advocacy by UN and child protection agencies at the country level
Bringing together partners to create a common approach to advocating for governments to prevent the spread of the pandemic among juveniles in detention is a good first step.
Sector specific or UN wide approaches are particularly useful for coordination and advocacy. A sector wide approach brings together all child protection and broader protection organizations with a mandate for child rights to develop a coordinated advocacy strategy including key messaging.
Cambodia for example has adopted a UN wide approach reflected in a letter from the Office of the High Commissioner for Human Rights in Cambodia, UNICEF Cambodia and UN WOMEN Cambodia, to the relevant Minister. This approach identifies a range of vulnerable groups in detention including women as well as women with children; people with disabilities; those with a chronic health condition and of course children.
In New South Wales, Australia, the government is preparing for the release of some of the more than 14,000 prisoners, including some of approximately 750 boys and 90 girls. This is in response to a campaign initiated by a group of more than 370 lawyers, academics and advocates. In an open letter, they called on Australian governments to follow the lead of jurisdictions such as Ireland, the United States, Iran and the United Kingdom, where authorities have either released prisoners or flagged it as a possibility in response to the pandemic. The letter stated that during disease outbreaks, prisons — where people live in close quarters and are often unwell — can become a breeding ground for viruses which spread to the community.
The more collaborative and inclusive the advocacy approach, the more effective it is likely to be.
Two: Shut the gate to prevent new admissions into detention
Advocacy efforts are likely to be more effective if they target specific justice agencies that are involved in the arrest (police), prosecution (public prosecutors/lawyers), and sentencing (courts) of children.
The pathway to detention usually starts with arrest and confinement in a police cell followed by confinement in a juvenile detention facility or prison while the child awaits a formal hearing on the alleged offence. If found guilty, the child may be given a custodial sentence where they are confined with other offenders for a set period.
An important reminder is that children who end up in juvenile detention facilities or prisons are, with few exceptions, some of the most highly vulnerable children in a society. Many have experienced sexual and physical abuse, have had limited parental guidance and supervision, and have been raised in soul-destroying poverty or in highly dysfunctional families or communities. Breaking the juvenile crime cycle and preventing children from re-offending is a key principle of juvenile justice, and more so in the face of a pandemic such as COVID-19.
It is also worth remembering that most children who come into conflict with the justice system, do not re-offend. An informal warning or more formal caution (name and details of the offense and alleged offender recorded by police) or a reprimand in court by a judge are usually enough to ensure the child does not come back into conflict with the law.
However, once a child gets caught up in the justice system, their pathway to a life of re-offending is almost guaranteed. In Australia, 80 per cent of children who complete a custodial sentence are re-convicted of another offense within the following 12 months. These figures are similar for the United States and United Kingdom with findings of 96 per cent and 80 per cent respectively.
As such, the use of pre-trial detention is rarely warranted, except of course in the most serious of cases.
Three: Prohibit pre-trial detention, promote conditional (early) release, and fast track parole and parole processes
UNICEF, other UN entities such as the Office of Human Rights, and a range of international and national NGOs have invested significant resources in supporting developing countries to create good juvenile justice laws based on the CRC and other international instruments. Good juvenile justice laws include provisions for limiting pre-trial detention, for conditional (early) release and for parole. They also include provisions for alternatives to detention, which are becoming a more accepted practice both at the formal level and the informal community and village court levels. This is well documented in a UNICEF East Asia Pacific Region study published in 2016.
In terms of conditional release for example, the Cambodian Law on Juvenile Justice (2016), allows for the conditional release of children who have served one third of their sentence.
Parole provision are generally more complex and require several steps to be followed over an extended period. In New South Wales, for example, Parliament rushed through emergency laws so that parole and the process of parole could be fast tracked as part of the public health response to COVID-19. The use of conditional release or international law, rather than parole, may prove a more efficient mechanisms for getting children out of detention quickly.
Where a country’s law is silent on conditional release or parole, a fallback position is to invoke international law to justify the release of children from detention. Given the long lead time for law reform, the New South Wales example is not encouraged. Further, rushed law reform brings its own set of problems. In the New South Wales, example, it is unclear whether the law actually covers children in juvenile detention facilities as opposed to just children in adult prisons.
The International Covenant on Civil and Political Rights (ICCPR) has been signed by 172 countries. Article 9(3) of the ICCPC empowers judges and judicial officials to release detainees in case of prolonged pre-trial detention. Furthermore, the ICCPR provides that: “it shall not be the general rule that persons waiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.” The Human Rights Committee, which monitors the implementation of the ICCPR, has consistently noted pre-trial detention should only be used as a last resort.
Along with Article 37 (b) of the CRC referred to above, Articles 13 and 19 the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing rules) provide that the arrest, detention or imprisonment of a child shall be used only as a measure of last resort and that, in particular, detention pending trial shall be replaced by alternative measure, such as supervision in the community, intensive care or placement with a family or in an educational setting.
Four: Reduce overcrowding
Reducing overcrowding and enabling improved personal hygiene through the adequate supply of soap and water along with proper toilet facilities is crucial in stopping or containing the spread of COVID-19 in juvenile detention facilities and prisons. Social distancing is not possible for detainees or staff in overcrowded settings. How can children ‘wash their hands’ when water is scarce, and sanitation is even poorer or non-existent?
Freeing up prison space through the conditional release of prisoners will enable the remaining prisoners to practice social distancing to prevent or control an outbreak. It will also allow for the water and sanitation needs of the remaining inmates to be better addressed.
Five: Provide post release support to children
Advocacy efforts to get children released from detention should include a call for governments to increase funding to civil society organisations to provide post release support for children as part of national economic stimulus packages.
For developing countries there is limited data on the re-offending levels for children. However, what we do know globally is that programmes that support children coming out of detention are critically important in reducing re-offending.
Post-release programmes (also known as aftercare programs in some countries), are the only proven method of supporting children not to re-offend after their release from a custodial sentence. The most effective post release programmes are developed with the detainee while they are in custody for implementation when they are eventually released into the community. These programmes generally focus on ensuring that the child has adequate and safe accommodation, has access to job training or support to continue with their schooling and has the support they need to address the triggers to offending such as interventions to address anger management and violent behaviour, drug and alcohol use, and managing peer and family pressures. Deciding which children should receive post release support should centre on risk. This means that children who are most likely to re-offend should receive the most intensive post release support.
Civil society organisations are best placed to provide post release services. As such, local civil society organisations require increased financial support from UN and government agencies and International NGOs to do this essential work.
The key message here is that all children who are not a threat to others or at risk to themselves should be released from detention as part of the public health response to COVID-19. However, we know that children who have been incarcerated are at high risk of re-offending. As such, providing post release support is still essential and local civil society organisations are best placed to provide this support as they have the contacts in the community, can help broker conflicts with the child’s family and are better placed to win the trust of the children involved.
To bring this blog to a wrap, preventing an outbreak of COVID-19 in juvenile detention facilities and prisons more broadly is an important public health measure. Not only will this protect the more than 400,000 children in these facilities Worldwide, but the communities into which these children are eventually released. While children are a clear priority for release from detention as a public health response to COVID-19 so too are a range of other groups such as women; including those who are pregnant and those who have children with them in prison; older detainees; and detainees living with chronic diseases and with disabilities.
Upcoming blogs and collaboration
Upcoming blogs will continue to look at different dimensions of child protection in the age of COVID-19 as well as broader issues relating to child protection in international development. Ideas for future blogs are most welcome as are offers to collaborate on writing blogs and think pieces.
A note about the author
Bruce Grant is an international child protection adviser and consultant, based in Sydney Australia. As a retired staff member of UNICEF, he has served as chief of child protection in some of the toughest development and humanitarian contexts in which UNICEF works. His work on justice for children issues is extensive. Prior to joining UNICEF, he was the Policy Coordinator for the New South Wales Department of Juvenile Justice. in 2002 he was awarded a Churchill Fellowship (2002) to travel to the UK, USA and Canada to conduct comparative analysis research on best practice programmes in juvenile justice. Churchill Fellowships are awarded to Australians striving for excellence. In 2020 he founded Child Protection in International Development, a website for sharing resources and generating and promoting new knowledge in child protection in international development. The website also serves as a platform for promoting the services he provides as an adviser and consultant. In addition to writing blogs, he writes think pieces and papers and publishes the occasional podcast. His last blog was Child Protection in the Age of COVID-19: What is the Data telling us?
Bruce can be contacted at bruce@bruceintheworld.com
