Children Deprived of Liberty: Betting on education

  • September 21, 2021
Benoit Van Keirsbilck

Benoit Van Keirsbilck

Director of DCI-Belgium and member of the Committee on the Rights of the Child (CRC)

The UN Global Study on Children Deprived of Liberty was presented to the United Nations two years ago already and it is clear that so far there has not been a real enthusiasm on the part of States to ensure the follow-up while the pandemic period has exacerbated the problems and violations of the fundamental rights of detained children in general and in particular of those who are deprived of their liberty in the context of the administration of justice. The Global Study painted a dramatic picture, but one that obviously did not surprise the majority of informed observers. Deprivation of liberty being most often a measure of first resort, decided almost automatically, for an inordinately long period, often for minor offenses or facts which should never lead to a public intervention of a criminal nature, but rather to the increased involvement of child protection services. The children concerned mainly belong to ethnic minorities or to the most disadvantaged groups in society. They are affected far more than average by mental, physical or psychological health problems and have not benefited from an environment conducive to their development and the exercise of their fundamental rights. 

 

The conditions of detention are generally extremely negative (overcrowding, violence including sexual violence, ill-treatment or even torture, isolation, deprivation, mixing with adults, mixing of girls and boys, lack of contact with the family, lack of education, access to health, basic needs, etc.) to the point that most young people leave more damaged than when they entered. In short, the vast majority should not be behind bars and States should realise that it is in everyone’s best interests to change the paradigm completely. The fact is that those who are trying to give impetus for change face a pharaonic task that may discourage even the bravest. The question remains; where to start when everything is a priority: improving protection systems, strengthening living standards, guaranteeing better access to quality education, supporting parents in their education task, promoting a less unequal society, fighting corruption. And if we look more specifically at the justice system, it is necessary that priority be given to diversion, and non-custodial educational measures. This must be accompanied by training of professionals at all levels, starting with the police, prosecutors, judges and social and educational workers. 

 

The system must also guarantee the effective enjoyment of rights at all stages, during the procedure and in the framework of the implementation of measures. Undoubtedly, quality legal and social support must be provided by lawyers and social actors who are also specialised. The system must ensure an individual assessment and a programme adapted to the situation and needs of each child. Finally, specialised and independent remedies, complaint mechanisms and monitoring systems must be in place. These changes will not take place without political will, without the determination of all the actors concerned and without a fundamental change in mentalities. As long as the child who broke the law is considered an outcast who deserves the worst of treatment, little will change as the practices described above continue to be justified. Rest assured, however difficult the task may seem, it is not impossible. Many States have effectively engaged in a process of change, based on a well-thought-out action plan including objectives and indicators, with the technical support of United Nations agencies, the involvement of the academic world for monitoring and evaluation, and with the support of civil society. These examples exist, have been documented and can be used as examples to develop a roadmap. Many experts and practical guides can also be mobilised. 

 

Without forgetting an actor who should play a major role in initiating and guiding changes: the children and in particular the children who have had experience of child justice and detention. They are in the best position, provided the conditions of their participation are respectful, to speak about their experience. If we take the time to listen to them, they will probably start by telling us about the grievances they experienced, the times when they were humiliated, discredited; they will tell us about their experiences of injustice, of the anguish of being in a jail or in an overcrowded and unsanitary cell. They will explain to us to what extent they have been crushed by the police, judicial and prison machinery. Some will admit that they mourned the separation from their family and those around them. Many will point out the incomprehension of the vocabulary, the procedures and the role of the actors. But they will also tell us about the people who listened to them, who took them seriously and gave them a chance; of those who have been able to give them perspectives and consider them as a unique human being who can bring something to society. They will remember the times when they felt grown up, respected, wanted to progress and felt it was possible. 

 

We must be able to mobilise these words for the benefit of future generations, so that they do not endure what those before them have suffered. Ultimately, what the Global Study calls for is to bet on education rather than repression. You don’t educate a child behind bars. Let everyone fully be convinced of this. 

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Children living with their parents in prison

  • September 29, 2021
© Prisoners Advice Service (Wikimedia Commons)

Laurel Townhead

Representative (Human Rights and Refugees) at Quaker United Nations Office

In almost all countries there are children living in prison with a parent, but the rules about when this happens (for example limiting this to only those children born in prison), what ages these children can stay with their parent until, and the conditions in which they live, vary greatly. All children are rights holders, but not all children are automatically seen as such in the decisions that impact upon them. Children who live in prison with a parent, and children separated from a parent by incarceration, need to be seen and specific actions need to be taken to uphold their rights.  

 

The inclusion in the Global Study on Children Deprived of their Liberty of a specific chapter on children living in prison with a parent is important for the visibility it provides and the recommendations it makes. There has been increased attention to how existing international standards should be applied to uphold the rights of these children since the 2011 Committee on the Rights of the Child Day of General Discussion¹. Though this the Committee sought to learn more about the impacts on children of parental imprisonment and strategies for upholding their rights.  More recent developments, notably the Global Study, draw from this Day of General Discussion and provided new momentum for change to limit and mitigate rights violations faced by these children.  

 

Discussions and developments have covered both the treatment of children whilst deprived of liberty with their parent and steps that should be taken to prevent children being put in this situation. An apparently straightforward solution would be to prohibit children from residing with a parent in prison. However, there are significant short- and long-term impacts for children resulting from separation from a parent due to parental incarceration, and these impacts are not limited to those separated as babies or in their earliest years².  

 

A clear recommendation from the Committee was:

 

In sentencing parent(s) and primary caregivers, noncustodial sentences should, wherever possible, be issued in lieu of custodial sentences, including in the pre-trial and trial phase. Alternatives to detention should be made available and applied on a case-by-case basis, with full consideration of the likely impacts of different sentences on the best interests of the affected child(ren)³. 

 

The Global Study builds on this:  

 

Governments are encouraged to recognise both the detrimental impact of family separation due to parental incarceration and the detrimental impact of deprivation of liberty with a parent. All possible measures should be taken to reduce the number of children deprived of liberty with a parent in the criminal justice system without increasing the separation of children from a parent due to the parent’s incarceration. A presumption against a custodial measure or sentence for primary caregivers should apply⁴.

 

Both recommendations contain within them the need for a State, through its sentencing authorities, to take into account the impacts on children of sentencing their parents. Core to this is the primacy of upholding the inherent dignity and best interests of the child in their specific circumstances. The Day of General Discussion contemplated a recommendation for a maximum age for children residing in prison with a parent. This was considered given the range of ages (from around 6 months to around 6 years or older) and a recognition of the potential risks and impacts on wellbeing and development for children living in prison. However, on reflection, and having heard from participants including children with a parent in prison, the Committee decided against a uniform recommendation on age. Instead, they emphasised the need for individualised assessments.  

 

This emphasis on including individualised assessments of the best interests of the child in the sentencing decision is also contained in the first General Comment from the African Committee of Experts on the Rights and Welfare of the Child⁵. Which sets out a five-point checklist for sentencing authorities to consider.  

Despite these recommendations, we are a long way from the use of best interests determinations whenever a parent is sentenced and children continue to be deprived of liberty with their parents in prison. Key concerns for upholding the rights of these children include:  

 

  • Safety  
  • Health  
  • Education and development  
  • Contact with family members outside the prison  
  • Preparation for release  

Recommendations from the Global Study and from the Committee have sought to address these issues too⁶. 

It is 10 years this September since the Day of General Discussion. In this decade, progress has been made in increasing knowledge, growing and establishing networks, and developing standards. The Global Study has contributed to each of these aspects. However, there remains a need for further guidance to mitigate impacts of deprivation of liberty with a parent but also to prevent it whilst maintaining the best interests of the child. 

 

The inclusion of best interests of the child assessments in sentencing decisions is not a small ask, it requires knowledge and skills that sentencers may not yet have. Ensuring adequate nutrition, developmental support and paediatric health care in adult prisons is not a small ask either, it requires the input of relevant specialists. Preparing children for release, especially if their parent is not released at the same time, is not a small ask, it requires coordination between different authorities including child welfare authorities as well as those responsible for prison management and release planning. 

The Global Study has been important in providing further profile information and recommendations on the situation of children deprived of their liberty with a parent in prison and we expect mechanisms for follow–up to continue to include this particular group of children. We also believe there is a need for detailed guidance and technical assistance for governments to support them in upholding the rights of these children. We are pleased to see interest in this from the UN Office on Drugs and Crime (UNODC) and encourage States to support their project to develop a Global Toolkit on children with parents in prison.  

 

Throughout our work on this topic, the role of partnership and participation have been clear and we trust that next steps with the Global Study will provide a stepping stone for States, the UN, NGOs, the Committee on the Rights of the Child, and the Special Representative of the Secretary General on Violence Against Children to come together with children with a parent in prison to ensure their rights are upheld. 

[1] https://www.ohchr.org/EN/HRBodies/CRC/Pages/Discussion2011.aspx  
[2] See for example: Jones, Adele, Gallagher, Bernard, Manby, Martin, Robertson, Oliver, Schützwohl, Matthias, Berman, Anne H., Hirschfield, Alexander, Ayre, Liz, Urban, Mirjam, Sharratt, Kathryn and Christmann, Kris (2013) Children of Prisoners: Interventions and mitigations to strengthen mental health. University of Huddersfield 
[3] https://www.ohchr.org/EN/HRBodies/CRC/Pages/Discussion2011.aspx 
[4] Manfred Nowak, The United Nations Global Study on Children Deprived of their Liberty, Chapter 10, Section 5, para. 6. 
[5] African Committee of Experts on the Rights and Welfare of the Child, General Comment No.1 on Article 30 of 
the African Charter on the Rights and Welfare of the Child: Children of incarcerated and imprisoned parents and primary care givers (2013) 
[6] See Lucy Halton and Laurel Townhead (2020), Children of Incarcerated Parents: International Standards and Guidelines (Quaker United Nations Office, Geneva) 

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Is detention the best the world can give me?

@DCI Greece
Nantina Tsekeri

Nantina Tsekeri

Founder and CEO of DCI-Greece

Children make up more than half of the refugee population around the globe. In 2020, more than 20,000 children had to flee their home countries, either alone or with their caregivers, in search of a safe place to be seen and treated as children.  

 

A child who becomes a refugee is forced to leave his/her country, due to fear of persecution on the premise of multiple reasons such as armed conflict, natural disasters, forced marriage, membership of a particular social group, religion, ethnicity between other reasons. A child who becomes a refugee holds the expectation that the international community has heard his/her suffering, his/her need for imminent protection and once they succeed in fleeing their country the world will become again fair to them. 

 

This expectation finds valid ground. Amongst other international legal texts, Article 22 of the Convention on the Rights of the Child, stipulates that states must ensure that children seeking international protection shall receive appropriate protection and humanitarian assistance, in equal terms to the rest of the child population within their territory. 

 

However, in the recent years, transit or host countries to the refugee population have become creative in depriving children on the move of their liberty and present it as a matter of urgency or a measure taken for their protection. Sometimes, detention is presented as protection or other times as a last resort unavoidable measure. This trend has found thousands of children on the move detained and left without a childhood to claim. 

 

DETENTION UNDER PROTECTIVE CUSTODY 

 

‘I left my country because I did not want to become a child soldier and kill other people. The journey to Europe was long and dangerous. Once I arrived in Greece I asked for asylum. I thought my nightmare was over. But I was wrong. I was placed in detention in a police cell without knowing why. I did not commit any crime’, said Amir 16-year-old, who was told that detention takes place as a means to ‘protect’ him. 

 

Since 2016, more than 34,000 unaccompanied children have been registered in Greece after crossing the Aegean Sea or entering the country by land from Turkey. Under Greece’s regime of protective custody, which began in 2001, many of the children have ended up being held in police stations for weeks, even months, instead of being transferred to a safe place compatible with their needs. The cells were unsanitary, overcrowded, and often shared with unrelated adults, further exposing them to higher risks of abuse and sexual assault.  

 

Greece was sued and condemned for this practice multiple times before the European Court of Human Rights, and in 2021 Greece announced the abolishment of its longstanding practice of holding unaccompanied migrant children in police custody. However, according to the official data collected from the Greek National Center for Social Solidarity, 36 children are recorded to be in protective custody at the end of July 2021. 

 

DETAINED IN OPEN AIR PRISONS CALLED HOTSPOTS 

 

‘I am trapped in the hotspot of Lesvos. In the night I am afraid to go to the toilet. The other day an 8-year-old girl was raped. I am afraid. In the day there are policemen everywhere and I cannot go out with my mum whenever I want. I want to get out of this hell and go to school’, said Fatima 14 years old who has a geographical restriction on her merits. 

 

In Greece hotspots on the islands essentially became reception centers after the EU-Turkey Statement in March 2016, transposed into Greek Law 4375/2016. Gradually, in the light of a massive increase in arrivals in Greece after 2016, the hotspots on the Greek islands acquired more characteristics of detention and areas where human rights have been systematically infringed. It has been used as a model of deterrence which is based on the practice of geographical limitation on people’s free movement. This geographical restriction, which in reality, has effectively transformed hotspots into massive open-air prisons has kept thousands of refugee children away from that place of safety in search of which they initially embarked on and which are entitled to under International Human Rights Law. 

 

In the outbreak of Covid-19, the children residing in the hotspots were forced into further restrictions of their liberty and discriminatory practices. As a response to the pandemic the Greek Government applied a strict quarantine lockdown within the Hotspots on the name of public health, which lasted far more than the general public lockdown. 

 

Following the passage of LAW 4636/2019 matters have been compounded by the Greek State’s plans to turn the Hotspots and the surrounding areas into well-guarded ‘concentration camps’ with locked gates, multiple barren courtyards, and limited access to free movement.  

 

Detention translates to deprivation of rights, visibility and love. Depriving children of liberty is depriving them of their right to be children. When this deprivation of liberty happens in the context of migration, where children are running away from persecution or away from conditions threatening their life, detention not only digs deeper into their existing wounds, but goes further in urgency, since it creates mistrust in humanity. And this trauma might be irreversible.  

 

Since deprivation of liberty constitutes a form of structural violence against children, this very trauma shall be healed into the context of restorative justice, where institutions, justice and society come together to restore the child’s faith to humanity by treating them with dignity and respect. This constitutes one of the 2030 Sustainable Development Goals that all states have committed to place at the heart of their policy actions. 

 

The UN Global Study on children deprived of Liberty reminds states that detention of children for migration-related reasons cannot be enforced as a measure of last resort and is never in line with the best interests of the child codified in Article 3 of the UN Convention on the Rights of the Child. The Study goes further urging States to prohibit and end all forms of migration-related detention of children and their families and call upon them to place children alone or with their families in non-custodial, community-based contexts.  The data collected for the purposes of this Study indicates that there are at least 330,000 children detained for migration-related purposes per year around the world. The Study showed that all these children are exposed to the risk of sexual abuse and exploitation while at the same time they develop anxiety, depression, suicidal ideation and post-traumatic stress disorder. 

 

It goes without doubt that there is no valid justification based on moral and legal ethics to detain children. Detention in the name of emergency, public or state sovereignty interests cannot be excused. It is in times of emergency, such as a war condition that gives birth to millions of refugees or a pandemic, when humanity is tested hard. It is then when states are expected not to compromise the absolute values forming their identity as a civilized state. Undoubtedly, not depriving children of their liberty is one of them. 

 

However, it becomes all the more evident that detention in the context of migration has exceeded the typical norms. Locking children behind bars for the sake of their protection or placing them in overcrowded open-air prisons are some of the ways EU states deliberately have chosen to ‘welcome’ children on the move in recent years. It is non-negotiable that transit or host countries have the obligation to follow another direction driven by the values enshrined in the text of the Convention on the Rights of the Child and not to enforce children into harsher restrictions of their liberty. Other EU states as well need to encourage these states following that path and support them proportionately. Otherwise, it will remain unconscionable that the international community has not adequately stood up for the fundamental rights of refugee children. 

The world needs to give Amir and Fatima an answer, when they asked that ‘WHY’. And this answer needs to take the form of action where healing will meet justice and from that, as lesson learnt, to inspire states to exercise their creativity when managing migration in ways that will not create harm. It is our responsibility that next time a child comes to EU soil and asks for a refugee in order to place their soul and integrity, detention will not be the best we can offer to them. 

The Children’s Rights Helpdesk of Defence for Children International (DCI) – Greece, has received more than 400 cases of refugee children deprived of their liberty in the last four years. Some of them remained detained for more than a year. DCI–Greece supported legally these children and released them from detention. Advocacy on this issue has led to the abolishment of the Protective Custody Regime in the country. However, DCI- Greece is still monitoring its implementation and operates as a watchdog of the rights of children on the move. This paper reflects the data and information gathered from the work with these children. Names have been changed for protection purposes. 
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The UN Global Study on Children Deprived of Liberty: Progress achieved and the challenges ahead


From the NGO Panel on Children Deprived of Liberty Co-chairs, Alex Kamarotos, (DCI) and Jo Becker (HRW)

The UN Global Study on Children Deprived of Liberty (GSCDL) aims to shed light on the scale and conditions of children deprived of liberty, identify good practices and make recommendations for effective measures to prevent human rights violations against children in detention and reduce the number of children deprived of liberty. It depicts the reality of child deprivation of liberty in different settings, ranging from migration-related contexts to children deprived of liberty in institutions, and includes cross-cutting themes such as disability and the gender dimension of this phenomena.

A group of nongovernmental organisations launched a campaign for the Study in March 2014.  They envisioned a Study to bridge the data gap on the unknown number of children deprived of liberty worldwide, raise awareness of children deprived of liberty, and contribute to positive changes in policies and practice in the way that two previous global studies—on the Impact of Armed Conflict on Children (1996) and Violence Against Children (2006)—did. These civil society organisations formed the NGO Panel on Children Deprived of Liberty, co-chaired by Defence for Children International and Human Rights Watch, to call on governments and United Nations agencies to back the study. The NGO Panel’s advocacy resulted in the UN General Assembly (UNGA) Resolution 69/175 inviting the Secretary-General to commission “an in-depth global study on children deprived of liberty”. In October 2016, Prof. Manfred Nowak (Austria) was appointed as Independent Expert to lead the Global Study on Children Deprived of Liberty.

Children deprived of liberty are a largely invisible group of children, and the Study faced significant challenges in accurately depicting the nature and scope of the issue, due to gaps in data collection and dissemination. Nevertheless, the data and research collected by the Study, as well as its conclusions and recommendations, such as the promotion and effective implementation of alternatives to detention, have positioned it as a benchmark in the field.

Throughout the last two years, dissemination efforts of the Study’s findings and recommendations have mainly taken place through awareness raising initiatives and regional and national launches with the involvement of the NGO Panel. Examples of such efforts include the regional launches of the Global Study throughout 2020 in Ecuador, the Netherlands, Ethiopia, the Republic of Korea, Bangkok and to the European Parliament. In April 2021, the Study was launched in Cambodia in an event that provided an opportunity to hear about the thoughts of Cambodian children deprived of liberty, the experiences of local organisations working in this field, and the renewed commitment of the Cambodian government. These elements are necessary in order to initiate a national process of implementation based on the recommendations of the study. In July 2020, the NGO panel organised an online expert roundtable situating the implementation of the study’s recommendations in the context of the Covid 19 pandemic. The event was moderated by the UN Special Representative of the Secretary General (SRSG) on Violence Against Children, Dr. Najat Maalla M’jid, and featured the participation of the UN inter-agency Task Force for the GSCDL and of the NGO Panel.

These national and regional launches of the GSCDL provide an opportunity to discuss the main challenges in each context, what efforts are required to effectively implement the recommendations of the Study, and also provide a platform for dialogue, to share best practices and identify emerging trends. The launches help to raise awareness on the importance of the matters addressed by the Study and on the urgency of implementing its recommendations. 

In July 2021, almost two years after the presentation of the GSCDL at the United Nations General Assembly, the NGO Panel on Children Deprived of Liberty, along with Defence for Children International and Human Rights Watch, co-organised a webinar on “Solutions to Deprivation of Liberty, Integral Protection and Access to Justice for All Children”. The participants had the opportunity to hear from a varied roster of panellists, including practitioners, experts, state representatives, NGOs and youth representatives, and UN officials, including Dr. Maalla M’jid. 

Despite the progress achieved thus far, the efforts initiated with the publication of the Global Study are not over. The presentation of the Global Study to the UN General Assembly in October 2019 paved the way for concrete steps that need to be taken now by all stakeholders but most of all by member states to continue the path towards the long-term reduction of the number of children deprived of liberty. A UN General Assembly resolution reaffirming the leadership of the SRSG on Violence against Children in addressing children deprived of liberty will help maintain momentum around the study, and encourage implementation of its recommendations. The NGO Panel is supporting a resolution that will also request a follow-up report of the Study to be presented at the UNGA in October 2022, three years after the presentation of the Study itself. Such a report will highlight progress made, continuing challenges, and spur additional action to end children’s deprivation of liberty.

 

For more information, please follow the NGO Panel on Children Deprived of Liberty:
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