Children deprived of liberty: Detention as a last resort measure


More often than not, the Committee of the Rights of the Child has to deal with the problem of children deprived of their liberty in many of its Member States.

More often than not, the answers of Member States to the questions of the Committee seem to indicate that deprivation of liberty is a last resort because there are no “other resorts” to turn to.

More often than not, data reveals that innocent children are in closed institutions for the wrong reasons and for far too long.

More often than not, the Committee recommends Member States to use alternatives to deprivation of liberty instead of breaking the life of children for good.

More often than not, a closed setting is used for other purposes than penal justice, such as administrative imprisonment for asylum seeking or migrant children, closed medical institutions without independent regular monitoring for mentally challenged children, closed “educational” homes for difficult ones…

More often than not, examples can be found such as those mentioned below:

– Maria was 12, when she stole lipstick and candy from a shop. She ended up in a closed institution for difficult children.

– Pieter was 9, when the rebels came and forced him at gunpoint to cut off the hands of the neighbour’s daughter. He became a child soldier and was put in prison, captured at 14.

– Marja was 6, when she was betrothed to a 65 year old man and 12, when her father raped her. She got pregnant, was sentenced to death by stoning for adultery and died at 14.

– Pierre was 8, when he stole three tomatoes on a market and was put in a jail cell together with adult men for seven month, having to trade sex for food.

– Mary was 13, when she was accused by her mistress of stealing a golden ring. She was put in pre-trial detention for almost a year without ever having seen a lawyer or a judge. Albeit the ring was finally found in the house of the mistress (her son had it), Mary never got any re-compensation, not even an excuse, for having been imprisoned.

– Pjotr was 14, when his parents used him to fight each other during a bitter divorce. His wishes didn‘t count and he killed himself after having been sent to a closed institution because he had absconded several times.

– Maia was 15, when she was found by police, trafficked, working in a brothel, and denied protection, because she didn‘t have the courage to testify at court against an international trafficker. In spring, when the ice of the mountains had melted, her body was found. Thus police declared that that wouldn’t have happened if they would have been allowed to keep the girl in police custody for illegal immigration until she would have been repatriated.

– Marie and Peter were 2 and 4 years old respectively, when they entered prison with their mother who was sentenced to a 15-year term in jail. She used to sell drugs for her incarcerated husband to be able to pay for her and her children’s small home. They were 4 and 6, when they left prison without any knowledge of the outside world and without anybody they could turn to.

If you do not wish to accept these situations, do something, but do the right thing! Building more prisons, remand homes, re-education schools, and asylums for migrants, closed centres for refugees, you name it…?

Who is going to stop a prison ward if he forces a child to trade sex for food? Who is going to stop the director of prisons who decides where (in a “good” or “bad” closed institution) a girl should stay to ask her for sexual favours? Who is preventing that children stay together with adults in overcrowded cells without any protection against violent behaviour of adult inmates? Who is preventing that educators ask children for money to allow family visits? Who is stopping staff of remand homes and police to beat up “unruly” children? Or to send them for stealing or begging to the streets? Who will see to it that children deprived of their liberty will not be deprived as well of school, health services, vocational training, information and social skills?

To get children in closed institutions for petty crimes because no alternatives are available, to punish them and thus deprive them of their future because, being stigmatized, they will never find work to support themselves, to deny protection even to child victims and witnesses of crime, because neither tools nor laws are in place is not (and should not be) an option for Member States that have ratified the Convention on the Rights of the Child.

It is now 25 years, since the CRC has been accepted worldwide. There is a whole library on literature of similarly important documents developing methods to protect children not only in penal law matters as perpetrators but in civil and administrative law as parties of their own right as well. It is not documents, treaties, conventions that are missing. It is the implementation of all available guidelines we have to focus on now. We have to:

– change retributive juvenile justice attitudes against restorative approaches to allow for reparation and reintegration instead of putting children behind bars

– opt for child friendly institutions for children, closed, semi open and open, that are adapted for reconciling the child with society, instead keeping them apart of it.

We do not need of course to do all this. We can continue to send children to prison because they steal, they run away, they misbehave, they commit crimes, without ever even caring about why they did it, without ever to try to assist to solve their problems.It is no cheap solution though. Costs for an adult recidivist offender are far higher than giving social and sometimes financial support to a child in trouble.


Justice Renate Winter – Expert Member of the UN Committee on the Rights of the Child; Elected President of the Special Court for Sierra Leone from 2008 to 2010; Member of the Appeals Chamber of the Special Court of Sierra Leone (appointed by the UN Secretary General in June 2002)