Briefing: Detention of children— the human rights issues

13 November 2018

Article 40 of the UN Convention on the Rights of the Child recognises that children accused of having infringed the law have the right to be treated in a manner consistent with the child’s sense of dignity and worth, which reinforces the child’s respect for human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the child’s reintegration and assuming a constructive role in society. These principles are reinforced in a number of international instruments, including the Council of Europe Guidelines on Juvenile Justice which makes clear that:

  • Children should be informed about their rights and be supported to participate in proceedings affecting them.
  • Children’s best interests must be a primary consideration in all matters affecting them.
  • Children should be treated with care, sensitivity, fairness and respect.
  • The rights of children shall be secured without discrimination on any grounds.
  • The principle of the rule of law should apply fully to children as it does to adults.

International human rights law also has a great deal to say on the subject of the detention of children in conflict with the law. The general principles derived from treaties and case law are that:

  • detention of children should be a measure of last resort,
  • take place for the shortest possible time, and
  • be in an age -appropriate facility capable of meeting the child’s needs.

Article 37(b) and (c) of the UN Convention on the Rights of the Child provides that:

  • Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age.
  • Detention of children should be used as a measure of last resort and for the shortest possible time.
  • Every child deprived of liberty shall be separated from adults unless it is considered in the child's best interest not to do so.
  • Every child deprived of liberty shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances.
  • Every child deprived of liberty shall have the right to prompt access to legal and other assistance and the right to challenge their detention before a court or tribunal.

Article 37 must be read alongside Article 3, which requires the best interests of the child to be a primary consideration in all actions concerning them.

Higher standards of protection

The Council of Europe Guidelines make clear that children are entitled to a higher standard of protection when in conflict with the law. This is especially true in relation to detention. Children should be treated with care, sensitivity, fairness and respect, with special attention given to their well-being and needs, which includes respect for their physical and psychological integrity.

Last resort

The UN Convention, the United Nations Rules for the Protection of Juveniles Deprived of their Liberty and the Council of Europe Guidelines make clear that imprisonment should be used as a last resort. This is particularly the case for pre-trial detention (called remand in Scotland).

The UN Rules state that children who are subject to pre-trial detention are presumed innocent and shall be treated as such. Detention before trial should only take place in exceptional circumstances and all efforts shall be made to apply alternative measures.

The Council of Europe Guidelines state that special efforts must be undertaken to avoid pre-trial detention.

The UN Committee specifically addresses pre-trial detention in its General Comment No. 10. It says that:

  • Pre-trial detention should only be used where there are clear reasons set out in law, for instance where the child is an immediate danger to himself or to others.
  • An effective package of alternatives must be available to ensure that deprivation of liberty is only used as a measure of last resort.
  • States parties should take adequate legislative and other measures to reduce the use of pretrial detention.
  • Use of pretrial detention as a punishment violates the presumption of innocence.
  • The duration of pretrial detention should be limited by law and be subject to regular review.

Conditions of detention

The Committee also comments on the environment in which children are detained, saying that separate facilities must be established for children deprived of their liberty, which includes distinct, child‑centred staff, personnel, policies and practices. These should be in keeping with the rehabilitative aims of such a placement.

The UN Rules state that every juvenile shall receive adequate medical care, both preventive and remedial, including dental, ophthalmological and mental health care. Both the UN Rules and the Committee state that every child has a right to be examined by a physician immediately upon admission to a detention facility, for the purpose of recording any evidence of prior ill-treatment and identifying any physical or mental condition requiring medical attention.

The Council of Europe Guidelines makes clear that deprivation of liberty must not restrict any other children’s right other than the right to liberty.

Separation from adults

The UN Committee points out in its General Comment No.10 on Children’s Rights in Juvenile Justice that “there is abundant evidence that the placement of children in adult prisons or jails compromises their basic safety, well-being, and their future ability to remain free of crime and to reintegrate”. It says that although children may be detained with adults if it is in their best interests to do so, this should be interpreted narrowly. “The child’s best interests does not mean for the convenience of the States parties”.

The European Court of Human Rights has confirmed the need to separate children from adults in detention in its case law.