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Children in detention should be among the most visible to national authorities but are often not treated as children

Logic would suggest that children held within the criminal justice system should be among the most visible children of all, readily accessible to interventions that ensure their access to health-care, education and protection. But often children in conflict with the law effectively cease to be regarded as children. Instead, their perceived transgression is considered to remove them from childhood protection, exposing them either to being treated in exactly the same way as adult offenders or, worse, to having their vulnerability as children abused.

Data on children in detention are scarce, but UNICEF estimates indicate that more than 1 million children are living in detention as a result of being in conflict with the law. Unlike many of the other children considered in this report, in many countries children caught up in the criminal justice system have been processed and are available to official scrutiny, and so there is no excuse for the lack of information.

Nevertheless, it is clear that violent abuse of children in detention is a widespread and serious problem. In its 37th session, the Committee on the Rights of the Child raised a number of concerns about the procedures and protection of children caught up in the justice system in Brazil, among other countries, including reports of torture and extrajudicial killings in detainment facilities.

Children are at risk of violence while in detention both before and after any trial they may undergo. This can include physical and sexual violence by adult detainees, guards, police or other juvenile inmates, often condoned or even encouraged by staff within the system. The correctional regime is itself at times excessively violent, involving indefinite detention, long periods of isolation or, alternatively, co-mingling with adult prisoners in overcrowded and unsanitary conditions. In a small number of countries, the death penalty is still applied to juvenile offenders. The problem will be addressed in the United Nations Secretary-General's Study on Violence Against Children, the report of which is due to be released in 2006.

According to a group of international experts convened in April 2005 as part of the consultations for the UN Secretary-General's violence study, the key factors that facilitate violence against children in the justice system are:

  • Impunity and lack of accountability by law enforcement agents, institutions and staff who are responsible for violence against children.

  • The over-use of detention, particularly pre-trial detention, including that of non-offenders.

  • The lack of community-based alternatives to the formal justice system and alternatives to detention, including care and protection systems.

  • The lack of appropriate juvenile justice systems, including appropriate facilities and separation from adults.

  • The lack of external controls on institutions, including effective independent complaints and investigation procedures, independent monitoring and access by non-governmental organizations.

  • The 'acceptability' of violence in society, leading to tolerance of violence at all levels: family, school and community.

  • The lack of training and sensitization of law enforcement and juvenile justice personnel.

  • 'Tough on crime' policies, negative media and discriminitory images of street children and other socio-economically disadvantaged children.

Governments have a clear responsibility to protect children in detention from abuse and harm. But they must also question whether or not a child should be in detention at all. Detention should always be a last resort but, in many cases, it is too readily adopted as an immediate response to antisocial or disruptive behaviour by children and adolescents, as if removing them out of sight and out of mind is a goal in itself, rather than an unintended consequence.