International human rights standards and child imprisonment: Potentialities and limitations

International Journal of Children's Rights

Volumn 21, Issue 2, 2013, Pages 345-371

  Kilkelly, Ursula ^b   Goldson, Barry ^a  

^a UNIVERSITY OF LIVERPOOL   (United Kingdom)

^b UNIVERSITY COLLEGE CORK   (Ireland)

Author keywords

Abolitionism; Child prisoners; Children's rights; Human rights; International standards; Penal detention; Reductionism

Indexed keywords

EID: 84893503820     PISSN: 09275568     EISSN: 15718182     Source Type: Journal    
DOI: 10.1163/15718182-55680011     Document Type: Article

References (167)

1. R. Harvey & A. Lloyd, Youth Justice in Action Campaign Report (London: Children's Legal Centre and YCare International, 2006) 27.
2. P.S. Pinheiro, World Report on Violence Against Children (Geneva: United Nations, 2006) 191.
3. C. Hamilton et al., Administrative Detention: A Global Report (London: UNICEF Child Protection Section, 2011) 1.
4. Annie E. Casey Foundation, Kids Count Data Book: Moving Youth from Risk to Opportunity (Baltimore: Annie E Casey Foundation, 2004) 9.
5. See P.S. Pinheiro, World Report on Violence Against Children (Geneva: United Nations, 2006);
6. A. Piquero, 'Disproportionate minority contact', Future of Children 18(2) (Fall 2008): 59-79;
7. J. Hayes & G. O'Reilly, Emotional Intelligence, Mental Health and Juvenile Delinquency (Cork: Juvenile Mental Health Matters, 2007);
8. B. Goldson, 'Child incarceration: Institutional abuse, the violent state and the politics of impunity', in The Violence of Incarceration. eds. P. Scraton & J. McCulloch (London: Routledge, 2009) 86-10.
9. UNICEF, Justice for Children: Detention as a Last Resort Innovative Initiatives in the East Asia and Pacific Region (UNICEF, 2011).
10. B. Goldson, 'Child incarceration: Institutional abuse, the violent state and the politics of impunity', in The Violence of Incarceration. eds. P. Scraton & J. McCulloch (London: Routledge, 2009) 89.
11. P.S. Pinheiro, World Report on Violence Against Children (Geneva: United Nations, 2006).
12. P.S. Pinheiro, 'Opening remarks from Paulo Sergio Pinheiro', in NGO Advisory Panel for the United Nations Secretary-General's Study on Violence Against Children Violence Against Children in Conflict with the Law: A Thematic Consultation (Geneva: United Nations, 2005) 17-18.
13. NGO Advisory Panel for the United Nations Secretary-General's Study on Violence Against Children, Violence Against Children in Conflict with the Law: A Thematic Consultation (Geneva: United Nations, 2005) 4.
14. Although Article 37 includes all forms of deprivation of liberty, this article is concerned with penal detention only. Accordingly, the terms 'imprisonment', 'penal detention' and 'detention' are used interchangeably throughout the article.
15. Under the Children Act 2001, children under 16 years are detained in Children Detention Schools.
16. United Nations Committee on the Rights of the Child, (2006) Consideration of Reports submitted by States Parties Under Article 44 of the Convention Concluding Observations: Ireland, CRC/C/IRL/CO2, paras. 72-73.
17. Council of Europe, (2008), Report of the Council of Europe Commissioner for Human Rights Thomas Hammarberg on his Visit to Ireland 26-30 November 2007, CommDH (2008), paras. 68-72.
18. Council of Europe, European Committee of Social Rights Conclusions 2011 (Ireland), Articles 7, 8, 16, 17, 19 and 27 of the Revised Charter, p.19.
19. Council of Europe, Report to the Government of Ireland on the visit to Ireland carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 25 January to 5 February 2010, CPT/Inf (2011) 3, para. 26.
20. Irish Penal Reform Trust, Detention of Children: International Standards and Best Practice (Dublin: IPRT, 2009).
21. See also Irish Penal Reform Trust, PRT Briefing: Detention of Children in St Patrick's Institution (Dublin: IPRT, 2011).
22. Ombudsman for Children (2006) Advice of the Ombudsman for Children on the Proposed Changes to the Children Act 2001, pp. 19-21.
23. On the specific circumstances of detention in St Patrick's see Ombudsman for Children, Young People in St Patrick's Institution A Report by the Ombudsman for Children's Office (Dublin: OCO, 2011).
24. Minister Fitzgerald to End Detention of 16 and 17 Year Olds in St. Patrick's Institution. New Ministry Secures Capital Funding to End Detention in Adult Prison After 27 Years of Inaction'. 2nd April 2012.
25. See the details of the Press Statement at: http://www.dcya.gov.ie/viewdoc .asp?DocID=1842.
26. In August 2012, the last 16-year old was released from St Patrick's Institution.
27. See Cormac O'Keefe, 'Call to speed up release of 17-year-old boys from jail', Irish Examiner, 7 August 2012 at http://www.irishexaminer.com/ireland/ call-to-speed-up-release-of-17-year-old-boys-from-jail-203294.html.
28. Although their population has fallen significantly in recent years, and they offer a regime more focused on children's welfare the Children Detention Schools are not, themselves, immune from criticism.
29. See the recent reports of the Health Information and Quality Authority, the independent inspectorate that inspects the Schools at http://www.hiqa.ie
30. B. Goldson & J. Muncie, 'Towards a global 'child friendly' juvenile justice?', International Journal of Law, Crime and Justice 40(1) (2012): 47-64.
31. United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules) Adopted by General Assembly resolution 40/33 of 29 November 1985.
32. United Nations Guidelines for the Prevention of Juvenile Delinquency (The Riyadh Guidelines) Adopted and proclaimed by General Assembly resolution 45/112 of 14 December 1990.
33. United Nations Rules for the Protection of Juveniles Deprived of their Liberty. Adopted by General Assembly resolution 45/113 of 14 December 1990.
34. The third Optional Protocol to the CRC, adopted by General Assembly Resolution 66/138 of 19 December 2011, makes provision for individual children to communicate complaints to the Committee for consideration. The Protocol has not yet entered into force.
35. Between 2001-09 the United Nations Committee on the Rights of the Child issued 12 'General Comments': 'The Aims of Education'; 'The Role of Independent Human Rights Institutions'; 'HIV/AIDS and the Rights of the Child';
36. Adolescent Health'; 'General Measures of Implementation for the Convention on the Rights of the Child'; 'Treatment of Unaccompanied and Separated Children Outside Their Country of Origin'; 'Implementing Child Rights in Early Childhood';
37. The Right of the Child to Protection from Corporal Punishment and Other Cruel or Degrading Forms of Punishment'; 'The Rights of Children with Disabilities'; 'Children's Rights in Juvenile Justice'; 'Indigenous Children and Their Rights Under the Convention' and 'The Right of the Child to be Heard'.
38. United Nations Committee on the Rights of the Child, General Comment No. 10: Children's Rights in Juvenile Justice, Forty-fourth session, 15 January-2. February (Geneva: Office of the High Commissioner for Human Rights, 2007).
39. Council of Europe, European Rules for Juvenile Offenders Subject to Sanctions or Measures (Strasbourg: Council of Europe Publishing, 2009).
40. Council of Europe, Guidelines of the Committee of Ministers of the Council of Europe on Child Friendly Justice, (Adopted by the Committee of Ministers on 17 November 2010 at the 1098th meeting of the Ministers' Deputies), (Strasbourg: Council of Europe, 2010).
41. Council of Europe, Guidelines of the Committee of Ministers of the Council of Europe on Child Friendly Justice, (Adopted by the Committee of Ministers on 17 November 2010 at the 1098th meeting of the Ministers' Deputies), (Strasbourg: Council of Europe, 2010): section 11(c).
42. For a fuller discussion see B. Goldson & G. Hughes, 'Sociological criminology and youth justice: Comparative policy analysis and academic intervention', Criminology and Criminal Justice 10(2) (2010): 211-230.
43. See for example: F. Farrant, Troubled Inside: Responding to the Mental Health Needs of Children and Young People in Prison (London: Prison Reform Trust, 2001);
44. B. Goldson, Vulnerable Inside: Children in Secure and Penal Settings (London: The Children's Society, 2002);
45. R. Harris & N. Timms, Secure Accommodation in Child Care: Between Hospital or Prison or Thereabouts? (London: Routledge, 1993);
46. Her Majesty's Chief Inspector of Prisons, Young Prisoners: A Thematic Review by HM Chief Inspector of Prisons for England and Wales (London: Home Office, 1997);
47. D. Lader, N. Singleton & H. Meltzer, Psychiatric Morbidity among Young Offenders in England and Wales (London: Office for National Statistics, 2000).
48. Committee on the Rights of the Child, General Comment No 10, CRC/C/GC/10, para. 85.
49. Committee on the Rights of the Child, General Comment No 10, para 85.
50. Committee for the Prevention of Torture and Inhuman or Degrading Punishment, 28th Annual Report 2007-2008.
51. Portugal-CPT/Inf (2009) 13, para. 42.
52. See for example: B. Goldson, A Sense of Security: Curricula for the Induction and Training of Staff in Secure Accommodation (London: National Children's Bureau, 1997);
53. P. Gabbidon & B. Goldson, Securing Best Practice (London: National Children's Bureau, 1997).
54. Committee on the Rights of the Child, General Comment No 10, para. 85.
55. See, for example, L. Steinberg & E. Scott, Rethinking Juvenile Justice (Harvard University Press, 2008);
56. L. McAra & S. McVie, 'Youth crime and justice: Key messages from the Edinburgh study of youth transitions and crime', Criminology and Criminal Justice 10 (2010): 211-230.
57. Roper v Simmons 543 US 551 (2005); Graham v Florida 560 US (2010) and JDB v North Carolina 564 US (2011).
58. See also Miller v Alabama, decided 25 June 2012, which found the imposition on a juvenile of life without parole in non-homocide cases to be contrary to the US Constitution's protection from cruel and unusual punishment.
59. Committee on the Rights of the Child, General Comment No 10, para. 89.
60. Research shows that there are difficulties inherent in ensuring that children enjoy their right to education to the maximum extent in detention. See Lanksey, 'Promise or Compromise? Education for young people in secure institutions in England', Youth Justice 11(1) (2011): 47-60.
61. See also Committee on the Rights of the Child, General Comment No 13, The Right of the Child to Freedom from All Forms of Violence, CRC/C/GC/13 (2011).
62. Committee for the Prevention of Torture and Inhuman or Degrading Punishment, 18th Annual Report, p 11.
63. Recommendation (Rec) 2008 11, adopted by the Committee of Ministers of the Council of Europe on 5 November 2008.
64. See also Penal Reform International, Safeguarding Children in Detention: Independent Monitoring Mechanisms for Children in Detention (London: Penal Reform International, 2011) 44-57.
65. Commissioner for Human Rights, Issues Paper on Juvenile Justice, at pp 14-15.
66. For more detailed discussion see Penal Reform International, Safeguarding Children in Detention: Independent Monitoring Mechanisms for Children in Detention (London: Penal Reform International, 2011).
67. Committee on the Rights of the Child, General Comment No 10, para 89. More generally see Committee on the Rights of the Child, General Comment No 5, CRC/GC/2003/5, paras. 24 and 65.
68. The Guidelines on Child-friendly Justice were adopted by the Council of Europe Committee of Ministers on 17 November 2010.
69. See for example: B. Abramson, Juvenile Justice: The 'Unwanted Child' of State Responsibilities.
70. An Analysis of the Concluding Observations of the UN Committee on the Rights of the Child, in Regard to Juvenile Justice from 1993 to 2000 (Brussels: International Network on Juvenile Justice/Defence for Children International, 2000);
71. Defence for Children International, From Legislation to Action? Trends in Juvenile Justice Systems Across 15 Countries (Geneva: Defence for Children International, 2007);
72. B. Goldson & J. Muncie, 'Towards a global 'child friendly' juvenile justice?', International Journal of Law, Crime and Justice 40(1) (2012): 47-64;
73. U. Kilkelly, 'Youth justice and children's rights: Measuring compliance with international standards', Youth Justice: An International Journal 8(3) (2008): 187-192;
74. J. Muncie, 'The punitive turn in juvenile justice: Cultures of control and rights compliance in western Europe and the USA', Youth Justice: An International Journal 8(2) (2008): 107-121.
75. Committee on the Rights of the Child, General Comment No 10, para 1.
76. Equal Justice Initiative, Cruel and Unusual: Sentencing 13-and 14-Year Old Children to Die in Prison (Alabama: Equal Justice Initiative, 2008) 14.
77. Editorial, New York Times 'Children Can Never be Safe in Adult Prisons' (April 8, 2012) Available at: http://www.nytimes.com/2012/04/09/opinion/ children-can-never-be-safe-in-adult-prisons.html.
78. J. Austin, K. Dedel Johnson & M. Gregoriou, Juveniles in Adult Prisons and Jails: A National Assessment (Washington DC: United States Department of Justice, 2000) x.
79. However, as noted above, the CRC has been influential in recent Supreme Court jurisprudence around sentencing of those under 18 years.
80. Commission for Children and Young People and Child Guardian, Removing 17 year olds from Queensland Adult Prisons and Including Them in the Youth Justice System (Brisbane: Commission for Children and Young People and Child Guardian, 2010) 10-11.
81. B. Goldson & J. Muncie, 'Towards a global 'child friendly' juvenile justice?', International Journal of Law, Crime and Justice 40(1) (2012): 52.
82. Committee on the Rights of the Child, Concluding Observations: Hungary, CRC/C/HUN/CO, para. 61.
83. Committee for the Prevention of Torture and Inhuman or Degrading Punishment, Report to the Government of Ireland on the Visit to Ireland carried out by the CPT from 25 January to 5 February 2010, para. 26.
84. Germany-CPT/Inf (2007) 18, p. 44.
85. Estonia-CPT/Inf (2005) 6, p. 17.
86. Croatia-CPT/Inf (2008) 30, p. 23.
87. Slovakia-CPT/Inf (2010) 1, p. 41.
88. Portugal-CPT/Inf (2009) 13, p. 24.
89. See for example, Slovenia-CPT/Inf (2008) 7, p. 37.
90. Penal Reform International, Safeguarding Children in Detention: Independent Monitoring Mechanisms for Children in Detention (London: Penal Reform International, 2011) 50.
91. Turkey-CPT/Inf (2005) 18, para. 73.
92. Ireland-CPT/Inf (2011) 3, para. 26.
93. Austria-CPT/Inf (2010) 5, pp. 37-38.
94. For example see Finland-CPT/Inf (2009) 5, page 39; Slovakia-CPT/Inf (2010) 1, page 41.
95. For further discussion on this issue see S. Freeman & M. Seymour, '"Just Waiting": The nature and effect of uncertainty on young people in remand custody in Ireland', Youth Justice: An International Journal 10(2) (2010): 126-142.
96. Greece-CPT/Inf (2010) 33, p. 58.
97. For further general discussion on this issue see: Burman & Batchelor, 'Between two stools? Responding to young women who offend', Youth Justice: An International Journal 9(3) (2009): 270-285;
98. All Party Parliamentary Group on Women in the Criminal Justice System, Inquiry on Girls: From Courts to Custody (London: The Howard League for Penal Reform, 2012).
99. Cyprus-CPT/Inf (2008) 17, p. 31.
100. Committee on the Rights of the Child, Concluding Observations: Latvia, CRC/C/LVA/CO/2, para. 62.
101. Committee on the Rights of the Child, Concluding Observations: Estonia, CRC/C/15/Add.196, para. 50.
102. Her Majesty's Chief Inspector of Prisons, Annual Report of HM Chief Inspector of Prisons for England and Wales, 2001-2002 (London: The Stationery Office, 2002) 36-37.
103. Ireland-CPT/Inf (2011) 3, p. 25.
104. Netherlands-CPT/Inf (2008) 2, p. 38. For a fuller discussion on the general issue
105. see: B. Goldson, A Sense of Security: Curricula for the Induction and Training of Staff in Secure Accommodation (London: National Children's Bureau, 1997);
106. P. Gabbidon & B. Goldson, Securing Best Practice (London, National Children's Bureau, 1997).
107. Austria-CPT/Inf (2010) 5, p. 34.
108. Munby, The Honourable Mr Justice, Judgment Approved by the Court for Handing Down in R (on the application of the Howard League for Penal Reform) v. The Secretary of State for the Home Department, 29 November, (London, Royal Courts of Justice, 2002): paras. 172 and 175.
109. For an assessment of 'best practice' in this area see Irish Penal Reform Trust, Detention of Children: International Standards and Best Practice (Dublin: IPRT, 2009) available at ww.iprt.ie.
110. Lithuania-CPT/Inf (2009) 22, p. 28 and p. 18 in respect of police detention; Montenegro-CPT/INf(2010) 3, para. 114.
111. Latvia-CPT/Inf (2009) 35, p. 44.
112. Committee on the Rights of the Child, Concluding Observations: Poland, CRC/C/15/Add.194, para 50.
113. United Kingdom-CPT/inf (2009) 30, p. 47.
114. Ireland-CPT/Inf (2011) 3, para. 32.
115. Latvia-CPT/Inf (2009) 35, p. 25.
116. Her Majesty's Chief Inspector of Prisons, Annual Report of HM Chief Inspector of Prisons for England and Wales, 2003-2004 (London: The Stationery Office, 2005) 56.
117. B. Goldson & D. Coles, In the Care of the State? Child Deaths in Penal Custody in England and Wales (London: INQUEST, 2005) 28.
118. Latvia-CPT/Inf (2009) 35, p. 25.
119. Austria-CPT/Inf (2010) 5, p. 12.
120. Denmark-CPT/Inf (2008) 26, p. 14.
121. Lithuania-CPT/Inf (2009) 22, p. 12.
122. Poland-CPT/Inf (2006) 11, p. 12.
123. Slovenia-CPT/Inf (2008) 7, pp. 12-13.
124. Slovenia-CPT/Inf (2008) 7, p.13.
125. The Former Yugoslavia Republic of Macedonia-CPT/Inf (2008) 5, para. 117.
126. Netherlands-CPT/Inf (2008) 2, pp. 41-43.
127. United Kingdom-CPT/inf (2009) 30, p.50.
128. Ministry of Justice and the Youth Justice Board Youth Justice Statistics 2009/10 England and Wales (London: Ministry of Justice, 2011) 4.
129. HM Chief Inspector of Prisons for England and Wales, Annual Report 2010-11 (London: HM Inspectorate of Prisons, 2011) 62.
130. HM Chief Inspector of Prisons for England and Wales, Annual Report 2007-08 (London: HM Inspectorate of Prisons, 2009) 69.
131. HM Chief Inspector of Prisons for England and Wales, Annual Report 2008-09 (London: HM Inspectorate of Prisons, 2010) 67.
132. Ireland-CPT/Inf (2011) 3, para. 57. On this issue see also Ombudsman for Children, Young People in St Patrick's Institution A Report by the Ombudsman for Children's Office (Dublin: OCO, 2011) 34-38.
133. United Kingdom-CPT/Inf (2009) 30, para. 97.
134. HM Chief Inspector of Prisons for England and Wales, Annual Report 2004-05 (London: HM Inspectorate of Prisons, 2006) 16.
135. B. Goldson & D. Coles, In the Care of the State? Child Deaths in Penal Custody in England and Wales (London: INQUEST).
136. Cyprus-CPT/Inf (2008) 17, p. 37.
137. CPT 18th General Report, p. 11.
138. Austria-CPT/Inf (2010) 5, page 43; Netherlands-CPT/Inf (2008) 2, page 40; Germany-CPT/Inf (2007) 18, page 48; Spain-CPT/Inf (2011) 11, p. 64.
139. Committee on the Rights of the Child, Concluding Observations: Denmark, CRC/C/DNK/CO/3, para. 58.
140. The Lord Carlile of Berriew QC, An Independent Inquiry into the Use of Physical Restraint, Solitary Confinement and Forcible Strip Searching of Children in Prisons, Secure Training Centres and Local Authority Secure Children's Homes (London: The Howard League for Penal Reform, 2006) 61.
141. Cyprus-CPT/Inf (2008) 17, p. 2.
142. United Kingdom-CPT/inf (2009) 30, para. 110.
143. See for example, United Kingdom-CPT/inf (2009) 30, p. 51.
144. Malta-CPT/Inf (2011) 5, p. 53.
145. See 'Minister Fitzgerald extends Children's Ombudsman's remit to cover St. Patrick's Institution', 23 June 2012 at http://www.merrionstreet.ie/index. php/2012/06/(the Irish Government News Service).
146. B. Goldson, Vulnerable Inside: Children in Secure and Penal Settings (London: The Children's Society).
147. B. Goldson & D. Coles, In the Care of the State? Child Deaths in Penal Custody in England and Wales (London: INQUEST, 2005) xxii.
148. Children's Rights Alliance for England, Rethinking Child Imprisonment: A Report on Young Offender Institutions (London: Children's Rights Alliance for England, 2002) 49-137.
149. See for example: B. Goldson & G. Hughes, 'Sociological criminology and youth justice: Comparative policy analysis and academic intervention', Criminology and Criminal Justice 10(2) (2010): 211-230;
150. B. Goldson & J. Muncie, 'Rethinking youth justice: Comparative analysis, international human rights and research evidence', Youth Justice 6(2) (2006): 91-106;
151. B. Goldson & J. Muncie, eds., Youth Crime and Juvenile Justice: Children's Rights and State Responsibilities (London: Sage, 2009);
152. B. Goldson & J. Muncie, 'Towards a global 'child friendly' juvenile justice?', International Journal of Law, Crime and Justice 40(1) (2012): 47-64;
153. U. Kilkelly, 'Youth justice and children's rights: Measuring compliance with international standards', Youth Justice 8(3) (2008): 187-192;
154. U. Kilkelly, Youth Justice in Ireland: Tough Lives, Rough Justice (Dublin: Irish Academic Press, 2006);
155. U. Kilkelly, L. Moore & U. Convery, In Our Care: Promoting the Rights of Children in Custody (Belfast: Northern Ireland Human Rights Commission, 2002);
156. U. Kilkelly, R. Kilpatrick, L. Lundy et al., Children's Rights in Northern Ireland (Belfast: Northern Ireland Commissioner for Children and Young People, 2006);
157. J. Muncie, 'The punitive turn in juvenile justice: Cultures of control and rights compliance in western Europe and the USA', Youth Justice 8(2) (2008): 107-121.
158. L. Ratledge, Inhuman Sentencing: Life Imprisonment of Children in the Commonwealth (Child Rights Information Network, 2012). Available at: http://www.crin.org/docs/Inhuman Setencing.pdf.
159. Child Rights Information Network 'Ending Inhuman Sentencing of Children' (2012). Available at: http://www.crin.org/violence/campaigns/sentencing/.
160. Amnesty International 'Executions of Juveniles since 1990' (2012). Available at: http://www .amnesty.org/en/death-penalty/executions-of-child- offenders-since-1990.
161. P. S. Pinheiro cited in Child Rights Information Network 'Ending Inhuman Sentencing of Children' (2012). Available at: http://www.crin.org/violence/ campaigns/sentencing/.
162. D. Medlicott, Surviving the Prison Place: Narratives of Suicidal Prisoners (Aldershot: Ashgate, 2001) 219.
163. B. Goldson & D. Coles, In the Care of the State? Child Deaths in Penal Custody in England and Wales (London: INQUEST, 2005) 61.
164. J. Miller, Last One Over the Wall: The Massachusetts Experiment in Closing Reform Schools, second edition (Columbus: Ohio State University Press, 1998) 18.
165. H. von Hentig, Punishment: Its Origins, Purpose and Psychology (London: Hodge, 1937).
166. R. Mendel, No Place for Kids: The Case for Reducing Juvenile Incarceration (Baltimore: Annie E. Casey Foundation, 2011) passim 5-25.
167. See also B. Goldson, 'Child Imprisonment: A case for abolition', Youth Justice 5(2) (2005): 77-90.