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by Ursula Kilkelly and Pat Bergin
2nd November 2021

The United Nations Convention on the Rights of the Child (CRC) recognises the minimum universal rights of children in all areas of their lives. Widely adopted internationally, the CRC recognises the rights of the child to health, education and family relationships, along with principles that acknowledge children’s right to be heard and have their best interests taken into account in decisions about their lives.

Children in conflict with the law have special provision in the Convention – they must be treated in line with their age and circumstances, with particular focus on specialist, child-centred approaches. The CRC permits children to be detained only as a measure of last resort and for the shortest appropriate period of time and the United Nations’ Committee on the Rights of the Child, the body that monitors implementation of the Convention, has made clear that children in detention must continue to enjoy their rights – to education and health care, to protection from harm and to treatment and care consistent with the goals of rehabilitation and reintegration.

Despite these standards, real challenges continue to exist in the implementation of children’s rights in detention. In 2019, the United Nations’ Global Study on Children Deprived of Liberty reported that children in detention are exposed to breaches of their rights as a result of little or no education or health care and poor regard for their development, with overcrowding and inadequate material conditions experienced by children in poorer countries. The gravity of the findings in the global study indicates the extent to which children are denied their rights in detention, while the report also illustrates states’ failure – for various complex reasons – to take effective steps to ensure children’s rights are realised in practice.

In Ireland, significant progress has been made in improving the treatment of children in detention in line with international standards. A programme of legislative and policy reform has been underway, matched by capital investment and a commitment to the implementation of international principles of diversion and child-centred approaches. Ireland now has the lowest number of children in detention in its history and its detention services have undergone substantial change in line with the country’s human rights obligations with an ambition that is child-centred and rights-based.

This process of change and reform is not complete, nor has it been without difficulty. This makes it even more important to share the learning internationally so that the prospect for wider reform of children’s rights in detention can be promoted. The change process that has taken place in Oberstown, Ireland’s national detention facility for all children under 18 years, has inspired a rights-based model of detention, based on the five children’s rights principles of provision, protection, participation, preparation and partnership, as described in my new book, Advancing Children’s Rights in Detention. This original model – based on a combination of academic and real-life experience – assumes that detention will only be used within the confines of the law, its use limited to a measure of last resort and for the shortest appropriate period of time in line with the obligations of international law.

Informed by theory and practice, the model highlights the priority to be given to child-centred approaches in ensuring an integrated approach to the advancement of children’s rights in detention. ‘Provision’ means ensuring that the basic rights of every child are protected, including rights to health, education and development. ‘Protection’ ensures that the child’s right to safeguarding from harm and injury is guaranteed, both in terms of protecting the child from self-harm and making certain that the detention environment itself is safe, with restrictive practices, for example, not causing danger and being proportionately used. ‘Participation’ rights reveal how to orient detention around children so that they are active participants in decision making at all levels, with access to advocacy and effective complaints mechanisms that ensure breaches of their rights are remedied. ‘Preparation’ rights address the duty to ensure the child is prepared for return to the community, and securing the child’s reintegration in a way that supports their future development and improves their life chances. Finally, ‘Partnership’ recognises that advancing the rights of the child in detention can only be secured through collaboration, engagement and the support of family as well as those who provide a range of services to meet the child’s complex needs at every stage.

At the core of the model is the requirement, in line with the fundamental principle of children’s rights, that all actions, measures and approaches to children deprived of liberty must be child-centred. This requires a commitment to treat children deprived of liberty as children, regardless of their background, their age or their circumstances, or the reasons for their detention. It recognises that children deprived of liberty are entitled to individualised care, in line with their assessed needs, and to be treated in a manner that ensures their rights are fulfilled.

The Irish experience over many years suggests that in order to advance the rights of children in detention, supportive measures are essential. Staff requirements for learning and development, support and wellbeing must be taken seriously, as only when these needs are met will they feel enabled to help the children in their care. Accountability, both externally and internally, is also crucial and finally, grounding the ambition for child-centred detention in national law and policy is necessary to set the clear expectation for the direction of travel. Even with these elements in place, advancing children’s rights in detention can be difficult. It is the measure of its importance – notably the gains available to the children themselves – that makes achieving these goals so worthwhile.

Ursula Kilkelly is Professor of Law in the School of Law at University College Cork. She is chairperson of the Board of Management, Oberstown Children Detention Campus. Pat Bergin was the first Director of Oberstown Children Detention Campus and is now Head of Service, National Forensic Mental Health Service.

 

Advancing Children's Rights in Detention coverAdvancing Children’s Rights in Detention: A Model for International Reform by Ursula Kilkelly and Pat Bergin is available on the Bristol University Press website. Order here for £60.00.

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