Childhood Behind Bars

The imprisonment of children is inhumane and is a clear breach of international law. Nevertheless, this practice, aimed at migrant and forcibly displaced children, is occurring in many Commonwealth countries including India, Malaysia, the United Kingdom, Canada and South Africa. In the past few years, those working with such children have witnessed how the detention of children forced to flee persecution and extreme poverty has aggravated the psychological harm caused by exile.

On 20 November 1980, the international community adopted the Convention on the Rights of the Child (CRC), specifically to recognise the inherent vulnerability and rights of children, identifying the best interests of children as a guiding principle. Twenty-six years later, many of the nearly 200 states signatories still fail to respect the norms of this convention.

Governments are increasingly relying on detention as a means of dealing with the irregular movement of people. While states have the right to manage the flow of migrants across their borders, this right is not absolute. Freedom from arbitrary detention is a fundamental human right, and states are obliged to follow the norms and principles of international law when adopting detention policies. States are not entitled to use detention as a deterrent as is so often the case but are actually obliged to protect vulnerable groups.

Children are psychologically vulnerable – and their detention increases the risk of further trauma difficult to remedy in the future. States actually have a duty to help children who are victims of traumatic experiences to recover both physically and psychologically. Detention not only goes against this duty but actually worsens their situation, sometimes leading to depression and even suicide attempts. Keeping this in mind, states are obliged to seek alternatives to detention, such as the establishment of child-friendly reception centres and the identification of foster families. In fact, in August 2006, a UN study urged the prioritisation of community-based alternatives to general detention of children and stated that detention should only be reserved, when no other solution is possible, for children posing a real danger to others. Yet in many countries this is not happening.

A report in 2006 for the ‘No Place for a Child’ campaign estimated that more than 2,000 children are locked up in UK immigration centres every year. Though the authorities try to keep children, together with their families, detained for as short a time as possible, the actual length of time in detention varies and there has been at least one recent known case of a child being detained for over 9 months. Alternatives to detention are already being practiced in a number of cases in the UK and, with some serious effort, could be the norm in all cases. Families with children are often detained out of fear that they will abscond – despite the fact that families with children are the least likely to do so.

Malta has recently developed a policy of releasing children from detention, housing them instead in professionally run care facilities. However, as current procedures for release are often lengthy and inefficient, children remain in detention for unnecessarily long periods. There are currently over 15 children in detention centres in Malta, including newborn babies and unaccompanied children. The policy of detaining migrant children in the European Union countries might soon change after the recent European Court of Human Rights decision to condemn Belgium for the detention of a 5 year old Congolese girl - which was deemed inhuman treatment and an unlawful deprivation of liberty.

In Canada, both accompanied and unaccompanied minors are detained - mostly in the immigration detention centres run by the Canada Border Services Agency. In 2002, a new law introduced a provision stating that detention of children should be “a measure of last resort” and outlining in the regulations particular considerations to be taken into account when detaining children. While this marked a step forward, there are still concerns about how the regulations are applied in practice. Despite an increased awareness among immigration officials regarding the detention of children, there is no consistent or coherent application of the principle of detaining children as a last resort. Nor is the law necessarily being interpreted in a manner that gives priority to children’s rights.

In India, all refugees - including children - are detained on arrival for varying periods of time until their identities are established. Unspecified numbers of children are also held in ´special camps´, meant for refugees suspected of links with militant groups. They are detained for indefinite periods of time and not released unless they return to their countries of origin. Similarly in Sri Lanka, displaced children in the Tamil areas of the north and east of the country are often arrested on suspicion of being informers, aides or militants. Exact numbers are impossible to ascertain as access to the places of detention is severely restricted.

In Malaysia, undocumented children are arrested and held in detention centres and prisons. Non Government Organisations working in this field are aware of some cases of detention of new-born babies, arrested along with their mothers who have approached government hospitals for medical assistance during childbirth, as well as of asylum-seeking children.

In Zambia, children are detained with adults - mainly due to a lack of resources which do not allow for alternatives to detention. In 2005, a large group of Congolese children who were victims of human trafficking were discovered in Zambia. They were kept in detention for a brief period because the Government had no other way of protecting them. Poorer countries require assistance to be able to protect the rights of the most vulnerable. On the other hand, as members of the Commonwealth, countries such as Zambia, also have a role in ensuring that their richer partners cease this unjustifiable practice of detaining children.

In South Africa, a 2004 High Court decision that no unaccompanied foreign child may be detained at the Lindela Repatriation Centre has brought positive changes. Nevertheless, despite this High Court decision, the detention of children in South African immigration facilities is still a concern. Access to the detention centres for monitoring is hampered by too many regulations and the authorities are unwilling to give information about the age of detainees, leading to failures in the system and cases of children still being detained.

The practice of detaining children has been more successfully challenged in some countries. The Australian experience demonstrates that detention policy need not impact on the most vulnerable – children. Between 1992 and 2005, thousands of children were detained in Australia’s immigration detention centres for periods averaging 15 months. While in detention, children routinely witnessed acts of violence and self harm. In a number of cases, their mental health deteriorated to the point where they themselves committed acts of self harm.

In June 2005, after a successful civil society campaign, the Australian Government announced that children would no longer be held in detention centres but would instead be placed in residential accommodation with their families while their immigration status was being determined. This policy has been operating successfully for more than a year and currently allows 55 children, who would otherwise be in detention, to live in residential accommodation with their families and freely attend school. Where the will exists, it is not difficult for governments to find humane alternatives to detention. Given Australia’s experience, there is absolutely no justification for any nation to lock up children in immigration detention.

Detention centres cannot offer children an environment conducive to their healthy development. On the contrary, held with adults, separated from their parents, denied access to education and places to play, the detention of children is never in their best interest. States are morally obliged to seek alternatives which are in the best interests of children. Intergovernmental organisations, such as the Commonwealth, together with civil society should urge states to respect without reservation all the rights laid out in the Convention on the Rights of the Child - particularly their duty of protection to children, and the obligation only to detain as a last resort and for the shortest appropriate period of time.

You can contact the writer at international.advocacy@mail06.jrs.net;
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