It is increasingly clear that the direct and indirect impacts of the global COVID-19 pandemic are not borne equally, hitting the most marginalised and vulnerable the hardest. As an infectious disease that thrives on people being in close proximity without access to high quality sanitation, COVID-19 is inevitably ravaging prison populations. While the impact of COVID-19 on prison populations has garnered some international attention, this attention has mainly focused on adults. Children in detention have been largely overlooked, despite being disproportionally vulnerable to health risks arising due to the conditions in which so many are being held.
As advocates for the rights of children and for the best interest of children, this means we must prioritise the release of children from detention during the COVID-19 pandemic. In fact, if we are not working to release children from the dangers of detention, we are denying those children their fundamental human rights as well as failing to protect their best interests.
Recent research suggests that children deprived of liberty are already likely to suffer from health problems, making them even more susceptible to severe forms of COVID-related illnesses. As adult prisoners are getting released to reduce possible outbreaks, and despite the efforts of some countries, children in detention centres around the world largely remain in overcrowded facilities. These children are often in facilities without access to good quality water and sanitation infrastructure, with limited access to basic resources such as soap, all of which is compounded by overcrowding which makes social distancing an impossibility. If COVID enters the detention centre via any one of the many support staff or visitors, steps taken to mitigate the spread of infection severely restrict children’s movement and activities, leading to prolonged periods of isolation – with potentially severe consequences for children’s mental health and wellbeing, children who in many cases are already likely to suffer from mental health issues.
International child rights standards, outlined in the UN Convention on the Rights of the Child, establish that children up to the age of 18 are entitled to certain fundamental human rights, including the right to be free from unreasonable deprivation of liberty and mandates that child-justice systems must act in the best interest of children. Deprivation of liberty must only ever be used as a last resort and only in the least restrictive manner for the protection of the child and of their community. There is no evidence to suggest that the best interests of children in detention are paramount during this global COVID-19 pandemic.
It is indisputable that the processes required to identify, understand, and uphold children’s best interests are multifaceted and complex and that these processes are undoubtedly further complicated by the constraints imposed by the global pandemic. For example, children released from detention may face serious concerns regarding safety at home, health, or the risk of infection. Well-intentioned measures like community release or probationary alternatives may inadvertently place children under the care of those who are sick or living in an infected area. Children who contract COVID in detention may infect their communities upon return. Arrangements for children’s quarantine, care, and treatment must be made upon their release. But these issues should not be used to legitimise a failure to recognise and uphold children’s fundamental rights and best interests.
The rights of children in detention should be supported and protected by an integrated and co-ordinated system of professionals. Social workers must protect children’s best interests. Case workers and probation officers must connect children to basic and critical services. Security forces must protect children and their communities. Judges and prosecutors must ensure that legal systems protect children’s best interests and fundamental rights such as the right to be free from unreasonable restraint and deprivation of liberty.
Inevitably, the protocols and ethics underpinning the work of these diverse professions may not always align and may even be in conflict at times. In addition to having a duty of care to children, lawyers – as officers of the court and representatives of the judicial system – must protect the fundamental human rights of children. International human rights law may require a sole, unencumbered focus on the right to be free from unreasonable deprivation of liberty in order to control what courts, jailors, and security forces must do in a time of crisis such as the present pandemic. This raises essential questions revolving around how systems and advocates committed to the best interests of children protect a child’s freedom from unreasonable detention, especially if it is detention that could keep them safe. Must we do both? We must.
These considerations are explored through a series of policy and practice briefs published by Terre des Hommes with the assistance of pro-bono volunteers at the law firm of Baker McKenzie. They set out relevant legal frameworks, ranging from international human rights principles to local and regional standards, as well as highlighting the promising practices system actors have committed to protecting the rights and the best interests of children who are deprived of liberty during the pandemic. We urge every government, security force, children’s court, and child service entity to consult these resources and implement the recommendations.
To learn more about these resources, join us on October 22nd 2020 during the webinar “Justice for children in the pandemic: actions to support policy & practice” and read more about our campaign: Accelerate Release of Children Deprived of Liberty in Time of COVID-19
Header Image: © Tdh / OllivierGirard
