Nevertheless, our research revealed that more than 7 million children globally are deprived of liberty—in prisons, jails, police lock-ups, immigration detention centres, psychiatric hospitals, orphanages and other institutions for the educational supervision of children, for children with disabilities, for children using drugs, etc. We recommended that states take urgent measures to radically reduce the number of children deprived of liberty, using all available means, including de-institutionalisation, immediate release of children from immigration detention, and diversion and transfer of children from the criminal justice system to the child welfare system.

Shortly after presenting the recommendations of the Global Study, the COVID-19 pandemic led to an unprecedented lockdown of our societies around the globe. In order to protect ourselves and others from this highly contagious disease, we have been required to apply strict hygienic standards and radically change our behaviour. For example, we have had to wear masks, practise physical distancing and stop all forms of public gatherings, including sport and cultural events, political demonstrations, religious services and public transport. As far as possible, we have had to stay at home and work from home. Significantly also, schools were closed and children have had to be taught by means of e-learning.

Now imagine what these measures mean for persons, and particularly children, deprived of liberty. During my six years’ experience as UN Special Rapporteur on Torture, I carried out 18 official fact-finding missions and visited hundreds of detention facilities in all world regions. In most of the countries I visited, the conditions of detention were so appalling that I spoke of a global detention crisis. In the meantime, the situation got even worse. Most prisons and other detention facilities are severely overcrowded, violent, dirty and lack any kind of minimum health standards. There are no other places where infectious diseases, such as tuberculosis and HIV/AIDS, spread more quickly than in detention facilities. From the current COVID-19 context, this reality for detainees is extremely troubling. How are detainees to practise social distancing and regularly wash their hands when they are stuck in overcrowded cells without any access to water? Imagine the fear detainees must feel in countries where thousands die from COVID-19! What is more, imagine the fear of children who are detained far away from their families!

However, rather than releasing children and enabling them to spend the COVID-19 lockdown at home with their families, many governments imposed further restrictions in detention facilities to prevent the spread of this virus. Family visits, which are for children in prison usually the only event they are longing for, have been cancelled. Further, if space allows, children have been separated from their fellow detainees to allow social distancing. This may even result in solitary confinement, which is particularly harmful to children.

Detainees, including children, are among the most vulnerable groups in society and lack effective lobby groups to assist them in standing up for their rights. Even among human rights groups and the media, empathy for children behind bars is limited – which makes such children invisible to the outside world. When prisoners started to protest in Italy and other countries against overcrowded conditions of detention in times of COVID-19, many governments reacted by releasing or transferring older and sick prisoners and those who had already served the majority of their sentences. Children, however, were often forgotten. In a press release on 14 May 2020, Human Rights Watch reported that adult detainees had been released in at least 79 countries (including Afghanistan, Chad, Indonesia, Portugal, South Africa and South Sudan) in response to the pandemic, while only about 20 countries are known to have released children from detention facilities. The Brazilian State of Sao Paulo was one such place where justice officials ordered the release of all children held for non-violent crimes, while requiring staff follow-ups after their release.

On 9 April 2020, UNICEF, together with the Alliance for Child Protection in Humanitarian Action, urged governments to institute a moratorium on new children entering detention facilities. They also called for states to release all children who can be safely released. In my opinion, only a very small number of child detainees constitute a genuine safety risk to others. Following Article 37(b) CRC, which allows the detention of children only as a measure of last resort, the COVID-19 pandemic should be an incentive for governments to stop their practice of placing children behind bars and to start releasing them. Human Rights Watch reported, for example, that a judge in the US State of Maryland had ordered local courts to urgently find alternatives to detention for child offenders and to review detention orders every two weeks.

In this regard, the Global Study on Children Deprived of Liberty can offer some assistance to governments. It provides a broad range of recommendations as to how the number of children in all forms of detention can be reduced in conformity with the requirements of the CRC by applying alternative solutions. These include not only returning children to their families, but also supporting such families. Placing children with foster families and other family-type settings with the active support of the child welfare authorities have also been shown to be highly effective non-custodial solutions. The COVID-19 pandemic provides a genuine opportunity for governments to take these recommendations seriously and, thereby, to contribute to solving the problem of overcrowded detention facilities. This would significantly reduce the risk of infection for children, but also for prison staff and their families. In particular, governments are urged to:

• release all children from immigration detention centres, as migration-related detention can never be considered as a measure of last resort
• stop the practice of placing migrant and refugee children (whether unaccompanied or with their families) in detention, and provide non-custodial housing for them
• release all children detained in the context of the administration of justice who do not constitute a genuine safety risk to others and provide them with non-custodial alternatives. This applies particularly for children convicted of ‘status offences’ (which can only be committed by children, such as truancy or running away from home) and other non-violent crimes.
• apply diversion at every stage of the criminal justice process (police, prosecutors, judges and correctional authorities) and transfer child offenders as early as possible to the child welfare system
• continue the process of de-institutionalisation and transfer children from closed institutions to their families or other family-type settings in their communities.

Remember: For children, deprivation of liberty means depriving them of their childhood. Situations of global crises should also be recognised as a time to pause, to reflect about major injustices, to promote change and to be better prepared to deal with similar situations in the future. If the COVID-19 emergency is used as a starting point to change the attitudes of governments and societies towards children behind bars, this pandemic could contribute significantly to giving those children their childhood back.

Cite as: Nowak, Manfred. "Children Behind Bars in Times of COVID-19: Are Governments Prepared?", GC Human Rights Preparedness, 30 June 2020, https://gchumanrights.org/preparedness/article-on/children-behind-bars-in-times-of-covid-19-are-governments-prepared.html