In this blog for World Children’s Day, Commissioner Bruce Adamson and Director of the Children and Young People’s Centre for Justice Claire Lightowler focus on the children in Scotland deprived of their liberty without ever being found guilty of an offence.
Taking away someone’s liberty, locking them up…away from home, away from family and friends.
It is one of the most serious decisions a state can impose and raises profound ethical questions.
It has deep and long-lasting consequences. For a child, it is particularly damaging because they miss out on critical stages of their emotional and social development:
For children who have been traumatised already, from experiences of abuse or neglect, the impacts of being deprived of their liberty can be devastating and irreparable. In prison settings, however well managed, there is a risk of bullying, abuse and violence which compounds existing trauma and adversity and potentially introduces new traumatic experiences. Scotland has known this for some time[i].
Children in Scotland deprived of their liberty while not found guilty of an offence
It may surprise some people to know that Scotland locks up children in prison like settings who have not been found guilty of an offence. Young Offenders’ Institutions (and occasionally prisons) detain these children alongside those who have been found guilty but have not yet been sentenced to custody.
Over time, the proportion of children who are locked up but have not been tried or sentenced has been increasing and now most children in prison settings are in this situation, known as being on remand.
Today, on World Children’s Day, 24 of the most vulnerable children in Scotland are locked up in Polmont Young Offenders Institution (YOI)[ii]. These are all boys aged 16 or 17 years old.
15 of these children have not been tried, and one has been tried but has not yet been sentenced. Only 8 have been tried and sentenced to custody. So, 67% of children currently in a prison setting in Scotland are on remand (16 children)[iii].
Some of these children may be found not guilty when they eventually go to court, in which case they will have been detained for committing no crime. Others may be found guilty but will not be sentenced to prison[iv] by the court.
What is life like in YOIs for children on remand?
Children on remand are treated differently in YOIs because they are not necessarily guilty. They have the right to be presumed innocent, and to not mix with adults or those who have been sentenced.
However, in practice this means certain supports and opportunities are not made available to them.
As a result, children on remand tend to spend longer periods of time in their cells than those who have been sentenced. They have not had a trial, or been found guilty, but experience the least amount of support and activities.
This lack of focus and structure can, and does, have significant impact on their mental health and can have profound and long-lasting consequences for them and ultimately for society.
It means that time on remand is ‘lost time’ where the child is not yet able to access support or interventions which reduce the risk they pose to others, but at the same time loses positive elements of their life (relationships, education, training, their home, placements, income etc)[v].
During the current pandemic these impacts are increased, with children experiencing an extended period without face to face contact with their families, social workers, or lawyers, and long periods in their cells with nothing to do.
The Special Rapporteur on Torture states that the imposition of solitary confinement of any length on children constitutes a cruel, inhuman or degrading treatment, which violates Article 7 of the International Covenant on Civil and Political Rights and Article 16 of the Convention Against Torture and should be completely prohibited.
Imagine being a child alone in a cell for over 20 hours a day with little to do and limited opportunity to talk to anyone[vi].
Imagine having no idea when your trial might be, due to the significant backlog of cases in court. Imagine not knowing when, or whether, you will be liberated.
What if you don’t feel safe? What if you are being bullied or abused? Who do you tell and how do you reach someone to speak confidentially?
Being in a prison setting during a pandemic
There are also obvious increased health risks to those in prison settings during a pandemic, with concerning numbers of people in prison in Scotland affected. On November 12, 719 individuals were self isolating and there were 116 confirmed cases of COVID-19 across Scotland’s prisons[vii].
At the beginning of the pandemic, the UN High Commissioner highlighted the specific risks of COVID-19 in prisons and the UN Committee on the Rights of the Child warned of the “grave physical, emotional and psychological effect of the COVID-19 pandemic on children.” The Committee urged all states “to release children in all forms of detention, whenever possible”. They stressed that where decisions are taken to deprive children of their liberty, the state must ‘ensure by strict legal provisions that the legality of a pre-trial detention is reviewed regularly, preferably on a weekly basis’. And it is vital that contact is maintained with their family.
Despite these warnings, Scotland has failed to assess the needs and risks of children who continue to be detained on remand.
Deprivation of liberty should be the last resort
If children are deprived of their liberty in a YOI during a pandemic, this decision needs to be subject to the most rigorous of legal processes.
There must be careful consideration of the child’s best interests and detailed, recent assessment of the risks they pose to others.
The UNCRC sets out that the deprivation of liberty should be the ‘last resort’ (Article 37)[viii], meaning that all other ways to keep a child and/or those around them safe should be considered first.
Yet, since the onset of the pandemic, there has been no assessment of whether the 24 children in Polmont YOI pose any risks that can only be managed by depriving them of their liberty.
No processes exist for the child to challenge or seek review of the legality of these decisions. Courts assess whether there are grounds to oppose bail, which involves considering a child’s risk of re-offending. But what is needed is a detailed assessment of the child’s specific circumstances, their needs and best interests and how to mitigate any risks they pose.
These risks can almost always be managed with high quality, intensive support in the community.
This includes a range of approaches, such as intensive fostering placements, electronic monitoring and supervised bail programmes.
The Scottish Government had an opportunity to do this via the emergency COVID-19 measures put in place, including the regulations for children and vulnerable adults and then the early release regulations, but chose not to make specific provision for children in detention.
Children were treated as prisoners first and deemed to be not eligible for early release.
There was no discussion or consideration of the fact that they were children and therefore entitled to special consideration, or protection.
There are sadly circumstances where the only way to keep other people safe is to deprive a child of their liberty. In these rare circumstances, however, it has been acknowledged that prison settings, including YOIs, are never appropriate places for children.
More appropriate and sensitive child-focused and trauma-informed settings should be available. Ensuring that in Scotland children are not in prison-like settings or YOIs was a promise made by the Independent Care Review and accepted by the Scottish Government.
Even when a child (after a rigorous risk assessment) needs to be deprived of their liberty for their own safety or that of others, Scotland must move quickly to develop other, alternative provisions, to fulfil our international human rights obligations.
[i] See: HMIPS (29 October – 2 November) Full Inspection of HMP YOI Polmont, HMIPS (2019) Report on an expert review of the provision of mental health services, for young people entering and in custody at HMP YOI Polmont, https://www.prisonsinspectoratescotland.gov.uk/publications/report-expert-review-provision-mental-health-services-hmp-yoi-polmont.
[iii] This contrasts with children in England and Wales, for the year ending March 2019 cchildren remanded in youth custody accounted for 28% of the average custody population. See UK Parliament – Justice Committee (2020), 12th Report: Children and Young People in Custody (Part 1): Entry into the youth justice system.
[iv] Data in Scotland is not available about how many children on remand then go on to receive a custodial sentence or not.
[v] Despite the 2019 HMIPS Inspection and Expert Review of Mental Health which highlighted significant concerns about the impact of detention on young people’s mental health and called for Scottish Government to review the appropriateness of YOI as a location to detain children, this has not happened.
[vi] Mobile phones were provided to those in Polmont YOI from July 2020, but calls can only be made at certain times and there is a 323 minute per month limit.
[vii] Scottish Prison Service, COVID-19 Information Hub, https://www.sps.gov.uk/Corporate/Information/covid19/covid-19-information-hub.aspx
[viii] The wording of ‘last resort’ is potentially problematic because it implies that once a child has been deprived of their liberty there is nothing else we can do to help them and this is their only chance.