Article 37 of the Convention on the Right of the Child (CRC) sets out the following provisions for the protection of children and their welfare vis-à-vis entanglements with the law:
(a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment . Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age;
(b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time;
(c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person . . . In particular, every child deprived of liberty shall be separated from adults . . .
(d) Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance . . . (Source: The CRC, OHCHR, 1989)
And yet, children continue to face numerous abuses in different criminal justice systems all around the world.
In Haiti, there are boys as young as ten years old who have been imprisoned for long periods of time without even seeing a judge. Others, even when they do see a judge, are not given an opportunity to speak in their own defence, or are not given a lawyer. Sometimes, the judge is a no-show, in which case the children return to jail. Some boys describe the circumstances of their arrest as “preventative” and not as the last resort stipulated under the CRC’S article 37. Few have contact with their parents, though it is allowed. In one prison, Forte Dimanche, young children are incarcerated in the same quarters as kidnappers and sexual predators.
In Rwanda, one UNICEF-government initiative that studied 600 children in prison found that not only were the children imprisoned with adults, but they did not have access to legal representation, violating two sub-articles of the CRC.
And, only last week, five women and their children (the youngest, less than 12 months old) are being held in quarters that have been described as both “suitable” and “like jail” all at the same time. As they await a decision on their request for asylum, they claim that they are unable to go play outside, even though officials reportedly promised they would be able to come and go.
An article in the St. Peterburg Times, for example, reported that the U.S. state of Florida has the highest national number of children in jail for life, even for crimes in which no death occurred. This is an abuse, as per article 37(a) of the Convention, though the United States is not a party to the CRC. Only four years ago was the state’s death penalty for children under 18 years old abolished.
Of developed nations, the United Kingdom has the most number of children serving time behind bars—about two and a half million. One major problem for juvenile offenders currently serving time in detention centres, such as those in the U.K. and Canada, is access to mental health services.
Many countries have an underdeveloped separate criminal justice system for youth that do not consider the special circumstances, vulnerabilities, and highly impressionable state of childhood. To improve this source of child rights abuses, technical and legal assistance are needed. This requires the cooperation of the international community, civil society, children’s advocates, and legal expert.