By Michael Bochenek
Around the world, children languish behind bars, in many cases for protracted periods of time. These children often face brutal and inhumane conditions and may be deprived of education, access to meaningful activities, and regular contact with the outside world.
The lack of record-keeping and the wide array of institutions responsible for detention mean that the number of children held worldwide is unknown, but the United Nations Children’s Fund (UNICEF) estimates that more than 1 million children are behind bars around the world today. A U.N. study, expected to be finalized in 2017, promises to put international focus on the detention of children and will hopefully result in the implementation of systematic monitoring of abusive practices, an increase in compliance with international standards, and a reduction in the number of children deprived of their liberty.
But governments need not wait for this report; they can and should act now to establish genuine alternatives to detention. States can also ensure that children who must be detained are held in humane conditions, along with access to other essential services.
Detention and Incarceration for Crime
In fact, many of the children around the world who are locked up today shouldn’t be. The Convention on the Rights of the Child establishes that locking up children on juvenile or criminal charges should always be the last resort. However, this is too often the first or only resort in countries where children are charged and held for acts that simply shouldn’t be considered criminal. Meanwhile, children living on their own in the streets are frequently arrested on vague charges—if they are charged at all, as Human Rights Watch has found in Cambodia and Uganda, among other countries.
In many countries, children can be detained for disobeying their parents or for committing “status offenses,” acts that would not be crimes if committed by an adult. In this context, girls may be detained in Saudi Arabia under ill-defined offenses of “seclusion” and “mingling.” In some countries, including Peru along with some Mexican and U.S. states, children may face criminal charges for consensual sexual conduct and can be detained if they exchange sex for food, shelter, or money to meet basic needs. Girls who seek an abortion may face criminal charges—even if the pregnancy resulted from rape—in countries like Chile, El Salvador, Ecuador, Peru, and the Philippines.
Some children are being imprisoned under sentences that are impermissible under international law, such as death sentences as well as life sentences that don’t allow for the possibility of release for crimes committed by people under 18.
Children from minority groups are disproportionately arrested and detained. In fact, the disparities between their treatment and that of children from majority groups increases at every stage of the process.
Detention as Immigration Control
International standards call for avoiding the detention of any asylum seeker; nevertheless, many countries detain children as a means of enforcing their migration laws.
Australia has operated a mandatory detention framework for all asylum seekers since 1992. In 2015, disturbing reports emerged that children and adults had been sexually assaulted by staff and other detainees during the previous two years.
In mid-2014, the Obama administration dramatically expanded family immigration detention capacity, from fewer than 100 beds to more than 3,000, for the stated purpose of deterring Central American migrants from entering into the U.S.
Thailand’s immigration laws permit the indefinite detention of all refugees, including Rohingya and members of other ethnic groups. Human Rights Watch and other groups also have documented large-scale detention of migrant children in Indonesia, Malaysia, and Mexico.
Detention in the Name of National Security
Children considered to pose a security threat may be held under administrative or military detention systems, which have fewer checks than criminal and juvenile justice systems. Those detained often include captured, surrendered, or demobilized child soldiers, even though international standards call for treating them primarily as victims and offering them rehabilitation.
Detention in the Name of Treatment, Care
Children who use drugs are also often detained in the name of “treatment” or “rehabilitation” from drug dependence, as in Cambodia, Laos, and Vietnam, while street children are frequently rounded up and detained arbitrarily, sometimes under vaguely worded criminal laws. Many countries lock up children with disabilities ostensibly for their care, but in reality as a result of stigma, lack of awareness, and limited or no community services and support for families. In Russia, Croatia, Greece, and India, for example, children with disabilities are often whisked to institutions shortly after birth, where they may be tied to beds, sedated, receive little or no attention or education, and be denied health care and adequate nutrition.
Human Rights Watch documented the practice of shackling children with real or perceived disabilities as young as 5—together with adults—in so-called prayer camps (or spiritual healing centers) in Ghana, where they were denied food, water, and shelter, and were separated from their families.
Impact of Detention and Imprisonment
Detention takes an enormous toll on children, particularly on their physical and mental health. Torture and other ill-treatment at the hands of guards is a risk for every detainee, especially for children held on national security grounds. Children may also face violence and other abuses from fellow detainees, sometimes instigated or condoned by the staff. Sexual assault is a specific risk for boys and girls who are held with adults.
On top of these challenges, facilities for children are often little more than warehouses. In most cases educational services are unavailable to children being held on grounds of delinquency, national security, or immigration control. Children deprived of their liberty in the name of protection or care, including children with disabilities, frequently do not receive the education and the special services they require. Children held for delinquency are too often placed in facilities that lack the staff and infrastructure necessary for anger management classes, life skills training, counselling, and other rehabilitative support.
Research has found that, in particular, detained child asylum seekers experience high rates of anxiety, depression, and symptoms of post-traumatic stress disorder in Australia, Britain, and the United States. Immigration detention may push children to abandon asylum claims despite their need for protection.
Alternatives to Detention
To ensure that children are deprived of their liberty only as a last resort, governments should establish and employ true alternatives to detention. In the justice system, these include the diversion of children from the formal justice system through alternative procedures and programs, probation, mediation, counselling, community service, and, where appropriate, “semi-open” facilities. These institutions give children supervision and structure but allow them to attend schools in the community and return home for overnight visits.
For migrant children and families, community-based alternatives—housing in settings that allow asylum seekers, refugees, and other migrants to attend regular schools, work in the community, and otherwise interact regularly with others—are preferable in virtually every respect to immigration detention. These alternatives are healthier, more cost-effective, and result in comparable rates of appearance at asylum or immigration hearings, as research has found.
Finally, governments can do more to reduce their reliance on detention and incarceration—by placing unaccompanied children with relatives instead of in immigration detention, by providing appropriate treatment and care for children who are disabled or have medical needs, and by making greater use of alternatives to detention in response to crime.
Locking children up is frequently unnecessary, abusive, and counterproductive. It’s time for countries to end these unlawful practices.
Michael Bochenek is the senior children’s rights counsel at Human Rights Watch.
[Photo courtesy of Human Rights Watch]