Justice for children
Justice for children is designed for the benefit of all children in contact with justice authorities to ensure that they are better served and protected.
Challenge
Children can be in contact with the justice system as a victim, witness or offender. Yet the justice system is often structured to deal with adults, not allowing the necessary space for the child to participate. A child, particularly as a victim requires additional safeguards to understand the proceedings, and if an alleged or convicted perpetrator, the balance between the punishment and the rehabilitation must lean towards rehabilitation. In South Asia, the focus is on punishment with countries in the region permitting physical and corporal punishment, as well as long-term detention, with few options for diversion or alternatives to detention.
Although South Asia specific data is not available, UNICEF estimates that more than one million children worldwide are deprived of their liberty by law enforcement officials. This is likely to be a significant underestimate given the difficulties in obtaining data about the many overlooked and unreported children in custody.
Most children in detention – around 59 per cent – have not been tried and sentenced. Only a minority of these children eventually receive a custodial sentence, suggesting that pre-trial detention is regularly used as a sanction, in violation of the right to be considered innocent until proven guilty.
Children’s cases are often processed through justice systems designed for adults that are not adapted to children’s rights and specific needs.
In breach of the principle that the deprivation of liberty be used only as a measure of last resort and for the shortest appropriate period of time, deprivation of liberty remains a common form of punishment for juvenile offenders, who are often detained for several years and, in some cases, for indeterminate periods of time.
Children are also detained in the context of immigration, mental health or for their own ‘protection’. While decisions taken to administratively detain a child may vary in terms of context, rationale and legal framework, it is common that the decision is taken not by a judge or a court, but by another body or a professional who is not independent of the executive branch of government.
Children victims of trafficking and sexual exploitation are often treated as offenders rather than victims and are often detained together with those who have committed an offense. In South Asia, the arrest and detention of children living and working on the streets by police officers on grounds such as vagrancy, indecent behaviour or prostitution, being a public nuisance or exposed to moral danger, is reported to occur in Bangladesh, Nepal, Pakistan and Sri Lanka.
The majority of children in detention have not committed serious offenses. A significant number have not even committed a criminal offence and are deprived of their liberty for a ‘status offences’ such as dropping out of school, getting married, running away from home and alcohol use. Status offenses are not considered criminal offenses when committed by adults.
Conditions of detention are generally sub-standard, overcrowded and deny children their rights, such as the right to appropriate standards of health and education. Children are regularly mixed with adults, increasing the risk for violence, abuse, and exploitation. As a result, detention rarely results in the child’s rehabilitation and reintegration into society, which should be the objective of any justice intervention in line with the Convention on the Rights of the Child.
Children may still be executed for crimes in some countries in South Asia while the Convention on the Rights of the Child prohibits the death penalty or sentences of life imprisonment without possibility of release for children.
Child victims and witnesses of crime are often re-victimized by justice systems that are not adapted to their rights and needs. Professionals – including the police, prosecutors and judges – often lack specialized training in dealing with child victims and witnesses. Related procedures are rarely child-sensitive.
Child victims’ access to justice is often impeded by obstacles such as lack of knowledge about their rights, court and legal representation fees and dependence on adults to bring rights violations to justice.
Children may also be in contact with the judicial system in cases on civil or family law, such as custody, divorce hearings, witnesses to domestic violence, placement in alternative care. Often, like in criminal proceedings, they are not heard.
Setting the minimum age of criminal responsibility too low also has a detrimental effect on children. With the exception of Afghanistan and Bhutan, the minimum age of criminal responsibility in South Asian countries is below international standards, ranging from 7 (Pakistan, India), 8 (Sri Lanka), 9 (Bangladesh), 10 (Maldives, Nepal), to 12 (Afghanistan, Bhutan).
Solution
Justice for children is an approach designed for the benefit of all children in contact with the justice system to ensure that they are better served and protected. The approach promotes the strengthening of all parts of child protection systems, including justice mechanisms, to operate in the best interests of the child.
The arrest, detention or imprisonment of the child may only be used as a measure of last resort and for the shortest appropriate period of time. Laws, regulations, and policies should be adapted accordingly, and professionals trained and community-based alternatives established where they do not exist. UNICEF promotes alternatives to detention, such as diversion, as well as restorative justice approaches and alternatives to deprivation of liberty that generally are more conducive to the realisation of children’s rights.
They are also in the interests of public safety and have proven to be more cost-effective.
UNICEF works with those professionals to put in place child-sensitive procedures for child victims and witnesses of crime, and professionals are trained accordingly. Such procedures, for example, preclude contact between the child and the alleged perpetrator, allow for the child’s full-fledged participation in the process and ensure that he or she is treated with dignity and compassion at all times.
UNICEF works to ensure that all children, including excluded and marginalized children, should be informed about their rights and about the avenues to seek redress for violations and should receive support during these processes.
UNICEF supports the training of police, prosecutors, judges, lawyers, social services and health professionals to effectively protect children in contact with the justice system. UNICEF’s work in the region includes:
- India – In partnership with the Supreme Court, UNICEF supported a series of state-level consultations to review the status of rehabilitation of children in the justice system, with a special focus on sexual abuse victims and children in conflict with law that led to innovations and improvement in oversight and accountability mechanisms.
- Maldives – UNICEF has supported the Police Service to develop and operate the Maldives Child Protection Database. This web-based database allows real-time data handling and analysis and is linked with the Family and Children Service Centres in the atolls and the Juvenile Justice Unit of the Ministry of Home Affairs.
- Bangladesh – UNICEF supported the Ministry of Law, Justice and Parliamentary Affairs to develop modules for the Children’s Act 2013 to be incorporated into the training curriculum of the National Social Service Academy, Public Administration and Service Academy, Police Training Academy, Judicial Administration Training Institute, and Legal Education Training Institute.
Resources
These resources represent just a small selection of materials produced by UNICEF and its partners in the region. The list is regularly updated to include the latest information.
- United Nations Children’s Fund, Justice for children in Afghanistan series, UNICEF, Kabul, 2008-2009
- Double victims: The treatment of child abuse and exploitation in the justice system (Issue 2, Oct 2008)
- The Role of Police: The Key to Change (Issue 3, Jan 2009)
- Social Investigation Report: Understanding children's circumstances (Issue 4, Feb 2008)
- United Nations Children’s Fund, Juvenile Justice in South Asia: Improving Protection for Children in Conflict with the Law, UNICEF, NY, 2006
- United Nations, Guidance Note of the Secretary-General: UN Approach to Justice for Children
- United Nations Children’s Fund, Child Protection Section, Administrative detention of children: A global report, UNICEF, New York, 2011
- United Nations Children’s Fund and the United Nations Office on Drugs and Crime, Manual for the Measurement of juvenile justice indicators, 2007
- United Nations Children’s Fund and the United Nations Office on Drugs and Crime, Justice in Matters involving Child Victims and Witnesses of Crime, 2009
- United Nations Children’s Fund, Toolkit on Diversion and Alternatives to Detention, 2010
- The Office of the United Nations High Commissioner for Human Rights, Children Deprived of Liberty 2016