Statement: New rights guide for children in custody

The Children and Young People’s Commissioner Scotland and the Children and Young People’s Centre for Justice (CYCJ) have jointly produced a guide for young people in conflict with the law. The guide, Know Your Rights When Entering Custody, was developed with young people currently in HMPYOI Polmont, as part of Youth Justice Voice’s Inside Out participation project.   


This guide launches on the same day as Her Majesty’s Inspectorate of Prisons for Scotland (HMIPS) publishes the findings from its Year of Childhood, Pre-inspection Health and Wellbeing survey of under 18s in the prison system. The snapshot survey aims to capture and understand the experiences of children in prison. 

Our office assisted HMIPS and CYCJ in the design of the pre-inspection survey and our Legal Officer, Maria Galli, was a key part of the inspection team. Maria joined staff from HMIPS, as well as an Independent Prison Monitor to speak to, and hear from, children under 18 in Polmont about their lives, experiences and rights. 

Every child deprived of liberty has the right to be treated with humanity, dignity and in a way that takes into account their needs and best interests. Our office is clear that depriving children of their liberty must only be a measure of last resort, must take place for the shortest possible time, and should always be in an age-appropriate facility, where children’s health and wellbeing needs are met. Prisons are not appropriate for children. The Commissioner has repeatedly called for no child to be deprived of their liberty in the prison estate, most recently in a letter to the Scottish Parliament’s Criminal Justice Committee. 

What have we learned? 

Maria Galli, Legal Officer for the Children and Young People’s Commissioner said: 

“As part of the inspection team, I spoke with children who shared their experiences of life before entering custody. Most had suffered trauma, and the most challenging of childhoods, including separation from their families, bereavement, mental illness, addiction, violence or abuse, and lack of education. Their right to ‘grow up in a family environment of happiness, love and understanding’ and for the State to support that, had simply not happened. 

“While we have seen a significant decrease in the number of children in prison at any one time, there were still over 100 children sent to Polmont in the past year.  

“No child should ever be deprived of their liberty in a prison under any circumstances. The practice of imprisoning children in Scotland breaches international human rights law and standards and is incompatible with the United Nations Convention on the Rights of the Child (UNCRC).  Where, as a measure of last resort, a child is deprived of their liberty to protect themselves or others from significant harm, this should only happen in a secure environment with specialist services and therapeutic supports for recovery.  

Impact on mental health and wellbeing 

Maria continued: “We spoke to children, the vast majority of whom were untried and on remand. They appeared to be having their basic needs met, and all felt that the prison staff cared for them and treated them with respect. However, it was clear that the prison regime, being strip-searched, restrained, secluded in isolation for long periods and unable to meaningfully access educational, work experience, training, or other recreational activities is having a significant negative impact on the children’s mental health and wellbeing.  

“Of particular concern is that the children are regularly being confined to their cells for more than 22 hours per day and are having limited contact with other children, family and professional supports. This is striking when compared to children living in other institutional settings where their holistic needs and rights are met as part of a planned package for protection, education and recovery. All children under 18 are entitled to the same levels of rights protections, no matter where they are living.  

How our guide will help 

“In their short lives, they have come into conflict with the law, and are now children living in prison, being treated and punished as adults where many of their human rights are not being respected, protected or fulfilled. Our guide will help people advocate on behalf of children in custody and raise awareness and understanding of the duties of the State to uphold these rights. 

“Their rights are being breached, despite the commitments and promises made to the children and young people of Scotland, and as the HMIPS Report stresses, there is an urgent moral and legal imperative for Scotland to ensure that no child is ever detained in prison or a young offenders’ institution.”  

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