The UN Global Study on Children Deprived of Liberty, published in July 2019, documents at least 410,000 children detained in remand centres and prisons every year, with an estimated 1 million children held every year in police custody.
The age at which children can be held criminally responsible (minimum age of criminal responsibility – ‘MCAR’) varies widely across the world, going as low as seven up to 18 years. Children above the age of criminal responsibility can be arrested, prosecuted and imprisoned.
In September 2019, the UN Committee on the Rights of the Child revised their guidance recommending the absolute minimum age of criminal responsibility from 12 to 14 years of age.
Positively, child-specific justice legislation, child-friendly courts and specialised procedures continue to divert children away from the criminal justice system and contribute to a decrease in the number of children in prison in many countries. However, children continue to be tried in adult or even military courts in contravention of international law in some countries.
Many countries criminalise ‘status offences’ – behaviour that would not be a criminal offence if committed by an adult – including truancy, violating curfew laws, or possessing alcohol or tobacco. There is also often a blurring of the boundaries between children who commit offences and children who need protection. For example, those living on the street, those with mental illnesses and child sex workers often find themselves criminalised.
In the context of children charged with or convicted of terrorist offences, a security‑dominated approach prevails in nearly all jurisdictions and the rights-based laws or approaches for children in conflict with the law is readily abandoned.
There are hundreds of children affected by or involved in foreign fighter activities (including those born to parents who left their home countries to join ISIL in Iraq or Syria). Despite governments basic responsibility in international human rights law to repatriate and protect them, many of these children have been left in refugee camps or are criminalised or detained when arriving in their (or their parent’s) country of origin.
Children who are arrested and held in detention are often subject to violence, abuse, neglect and exploitation at the hands of police, fellow detainees and staff in detention facilities. Abuse frequently goes unreported, the perpetrators are not held accountable, and the issue is rarely a priority for policy-makers. A lack of effective independent oversight of detention facilities can also leave children vulnerable to abuse or unable to exercise their rights.
Fair and effective child-friendly criminal justice systems rely on trained and specialist staff. However, in many countries’ professionals are not properly qualified to deal with the special needs of child suspects, defendants or witnesses.
Children whose parents are detained or imprisoned are an invisible and often highly vulnerable group whose rights and welfare can be seriously affected at every stage of criminal proceedings against their parent. There are an estimated 19,000 children living in prison with a primary caregiver (usually their mother). There is a lack progress in ensuring the impact on, or best interests of, a child are properly considered when sentencing their parent. This is particularly concerning as the number of women in prison continues to rise globally.