Accelerate release of children from detention; Protect children from COVID-19
During the COVID-19 pandemic, Terre des hommes is calling on States to release all children from immigration detention and accelerate the release of children deprived of liberty in criminal justice or protection facilities. Urgent attention should be given to the implementation of non-custodial measures to ensure children's safe reintegration into families and communities. In rare cases where children cannot be released, States should implement measures to safeguard children's health.
Across the world, the COVID-19 virus and the global public health emergency triggered by the pandemic are creating unprecedented levels of alarm across all sections of society.
While children in general are not a demographic that is most likely to more severe forms of COVID-19 infection, health experts have alerted authorities that children in poor health are going to be hit harder by COVID-19 than others.
Recent research suggests that children who are deprived of liberty are likely to carry a higher burden of ill-health. 1 There has been longstanding recognition that detention facilities, which are often dilapidated, overcrowded, and equipped with poor health, water and sanitation infrastructure, present multiple risks for children's health. Several studies have reported elevated rates of communicable diseases in detention facilities. Children in such facilities often show a prevalence of comorbidities such as asthma, tuberculosis and HIV. In addition, children who are deprived of liberty are more likely to use substances such as alcohol, tobacco and illicit drugs, which are detrimental to their physical and mental health.
International law stipulates that children should only be deprived of liberty as a measure of last resort and for the shortest period of time. However, the most recent estimates suggest that 7.2 million children worldwide are detained in different settings, including criminal justice detention institutions, police custody, immigration detention centers and within care and protection facilities. 2 In such settings, the most recent recommendations by the World Health Organization, such as washing hands, sanitizing communal spaces and social distancing, may be simply impossible to apply.
As the COVID-19 pandemic explodes across the globe, each and every one of these 7.2 million children is now at particular risk of infection and possible death.
Urgent action by policy makers, judicial actors and law enforcement authorities is needed to address the impacts of the pandemic on children deprived of liberty. Every effort should be made to accelerate the release of children from facilities where they are deprived of liberty and support all actors in the justice and protection systems to implement non-custodial measures.
What should be done?
States have a responsibility to protect children who are deprived of liberty from the risks associated with COVID-19 pandemic. We call on States to:
1) Release all children and their families who are currently held in immigration detention. Specific actions should include:
a. Immediately releasing the most vulnerable children (such as with diabetes, lung and heart disease) who may be at risk of complications if they get infected, and releasing their family members to ensure appropriate accompaniment;
b. Rapidly implementing alternatives to administrative detention through the establishment of community-based, non custodial measures;
c. Ensuring that communities benefit from the necessary health and hygiene measures, including through the development of a preparedness and contingency plan which includes access to hygiene items and health care, and through sharing information on prevention and response to COVID19, in relevant languages and child -friendly formats;
d. Stopping the arrest and detention of children and their families based on their migratory status.
2) Reduce the risks of infection and transmission of COVID-19 in criminal justice institutions by drastically reducing the number of children detained. Specific actions should include:
a. Ceasing arrest and detention in police custody of children who are accused of committing minor offenses. Instead, favor police-initiated diversion programs and pre-court interventions such as caution, restorative measures, warning or reprimand.
b. Refraining from prosecuting children for minor offenses.
c. Accelerating the release of children from detention by prioritizing those who are pending trial or sentences for petty crimes, those nearing the end of their sentences, and those with medical conditions. Children nearing the end of their sentence should benefit from early release through clemency and amnesty. Measures for depriving children of liberty should be commuted into non-custodial and community-based measures. The conditions of release should account for specialized support to enable children's safe reintegration into their family and community environments.
d. Where is it not possible to release children in conflict with the law, then institutions must ensure that children in detention should enjoy the same standards of health care that are available in the outside community. This entails reinforcing preventive measures such as WASH practices, and social distancing. Child-friendly quarantine measures which are respectful of human rights and children rights, such as video counseling, communication with families, access to health services and access to information, should be ensured.
3) Ensure the health and safety of frontline workers in the justice and protection systems, including social workers, lawyers, prosecutors, police, probation officers and staff in detention facilities; and reinforce multi-disciplinary coordination to enable all actors to safely contribute to the implementation of non-custodial measures for children deprived of liberty.
For over 2 decades, Tdh has been working across 40 countries to support governments in implementing alternatives to detention for children on the move of children in conflict with the law.
As part of its COVI19 response, Tdh will be working with partners to translate this call to accelerate children's release from detention into practice across the world.
We are currently working with regional, national and local justice stakeholders in order to activate the release of children from detention and support the implementation of non-custodial measures.
In the coming days, we will launch a policy briefing on this topic in partnership with the pro bono team at Baker McKenzie. Following this, we will be organizing online exchanges across the wider community of practice, to bring together all relevant stakeholders, including public authorities, NGOs, academics and the private sector, in order to operationalize the implementation of non-custodial measures for children at this critical moment.
If you are interested in being part of this ongoing work, please contact:
1 Nowak, M., 2019, The United Nations Global Study on Children Deprived of Liberty, Geneva, Messagio.