UNISEF Technical Note: COVID-19 and children, deprived of liberty

Introduction Experience from previous infectious disease outbreaks indicates that new child protection risks are likely to emerge from the direct effects of COVID-19 as well as from measures to prevent and control its spread. Moreover, existing child protection risks are likely to be exacerbated. Some groups of people are more vulnerable in these circumstances, including, as discussed in this note, children deprived of their liberty, who often have compromised psychosocial, physical and mental health issues, live in crowded or unhygienic conditions and are more vulnerable to abuse and neglect.

Photo courtesy of © UNICEF/UNI117442/Estey

Lessons learned from previous outbreaks emphasize the need for States to accommodate increased child protection needs when devising and implementing their response plans. Failure to address such needs or delayed implementation of coordinated responses can increase suffering, cause irreparable harm to children and can delay the recovery of whole communities.

In responding to the COVID-19 pandemic, States must ensure that the human rights of every child who is deprived of her or his liberty are fully respected, protected and fulfilled. This includes providing adequate care and protection from harm, including by taking concrete steps to reduce overcrowding in all facilities in which they are detained and ensuring safe placement in non-custodial, family or community-based settings. It also means that all decisions and actions concerning children must be guided by the principle of the best interests of the child, and children’s rights to life, survival, and development, and to be heard.

This note aims to provide detaining authorities with key information and steps to respond to COVID-19 including by:

1.Instituting a moratorium on new children entering detention facilities;

2.Releasing all children who can be safely released; and

3.Protecting the health and well-being of any children who must remain in detention.

1.Understanding How to Protect the Rights of ChildrenDeprived of their Liberty and Avoid IncreasedDetention of Children During the COVID-19 Outbreak

The Convention on the Rights of the Child (CRC) applies to all children in all contexts, including in emergency situations. On any given day, hundreds of thousands of children are deprived of their liberty in detention facilities globally. While anyone can contract the coronavirus disease (COVID-19), children deprived of liberty in locked facilities, including those detained with their parents or caregivers, those in immigration detentionii and those detained on national security grounds,iii are at greater risk of contracting and spreading the disease.iv Measures imposed to control the spread of the virus and its societal impacts are also likely to negatively affect their well-being and healthy development, including adequate care while detained, and family and community support.

According to Article 24 of the CRC, children have the right to the highest attainable standard of health. Children deprived of their liberty are more vulnerable to contracting COVID-19 because of the confined conditions in which they live. Deprivation of liberty makes it more difficult to self-isolate or practice physical distancing, especially in facilities that are overcrowded and unclean, and where security or infrastructure reduce access to water, sanitation and basic hygiene. Children deprived of their liberty have common demographic characteristics with generally poorer health than the rest of the population, are more likely to have or experience underlying psychosocial, physical and mental health issues that are exacerbated by their placement in custody and face the absence of quality health services even before an emergency arises. They often receive poor nutrition and lack adequate access to quality services including mental health and psychosocial support, social and educational services. Under these conditions, detention facilities may act as a source of infection, amplification and spread of COVID-19 inside and outside the facilities.

Detention facilities not only place children at severe risk of contracting the virus, they also place staff working in these facilities (police officers, correction officers, care givers, social workers, and health workers etc.), their families and communities at risk. Staff may not be equipped with adequate protective gear. Staff may also experience fear and face stigma, especially where outbreaks occur within facilities. In numerous countries COVID-19 has begun to strike prisons, jails and immigration detention centers, as well as other places where children are deprived of their liberty,v and in response, many countries are now taking pre-emptive steps to reduce the number of children deprived of their liberty.vi

In addition, public health prevention and control measures within detention facilities may increase children’s vulnerability to an already heightened risk of violence, including gender-based violence. Moreover, in many instances, detention facilities are far removed from children’s families, homes and communities and regular communication is often limited. This contributes to greater fear and uncertainty, further affecting the health and well-being (including mental and psycho-social well-being) of these children and their families. Children may also face stigma if outbreaks occur within detention facilities, potentially leaving them even further behind. In addition, staff illness can lead to staff reduction below acceptable levels for care and protection of children deprived of their liberty, potentially exacerbating children’s vulnerability due to lack of supervision and care, including their vulnerability to violence, abuse, and neglect, and a greater likelihood that they will be confined in smaller spaces that are easier to control or supervise.vii

In some countries measures to halt the spread of COVID 19 are actually increasing the number of children deprived of their liberty and curtailing release in spite of amnesties or general release orders aimed at decongestion of detention facilities. Such measures include closures of courts, suspension of criminal trials or administrative hearings, restrictions on freedom of movement, limiting access to lawyers or families by children deprived of their liberty, border closures, or expanding the use of pre-removal detention rather than halting deportations and releasing children to non-custodial alternatives to detention.

Recommendations related to the use of deprivation ofliberty and emergency measures during the COVID-19outbreak

2.1 Key Considerations for Implementing Emergency Response Measures

State responses to combat the COVID-19 pandemic for children deprived of their liberty, including emergency measures based on public health goals, must strictly adhere to international human rights law and standards. Any response should be proportionate, necessary, time-bound, subject to review, non-discriminatory to the evaluated risk and based on the best interests of children.

States must not use emergency measures in a manner to unlawfully restrict or suppress children’srights, including deprivation of their liberty, recognizing that certain rights are non-derogableviii;
States must take particular care to address the unique vulnerabilities of girls and boys, those whoare discriminated against on the basis of sexual orientation or gender identity, children withdisabilities, migrant/asylum seeker/refugee/stateless children, indigenous children, children fromethnic minority communities, children in street situations, children associated with armed groupsand armed forces and any other vulnerable or marginalized groups;
States should ensure that emergency measures taken to prevent, contain or respond to the virus donot result in continued detention of children who should otherwise be released or an increase in thenumber of children deprived of their liberty.

2.2 Compliance with International Human Rights Law and Standards on Justice for Children

States remain legally obliged to comply with international human rights law and standardsix on justice for children, including to:

As a general rule, use arrest, detention and imprisonment only as a measure of last resort and forthe shortest appropriate period of time;
Expeditiously and completely end the deprivation of liberty of children on the basis of their or theirparents’ migration status, as it is never in the child’s best interests, and prohibit immigrationdetention of children in law, policy and practice;
Treat every child deprived of liberty with humanity and respect for the inherent dignity of thehuman person and strictly safeguard their due process rights and procedural guarantees. Publicauthorities, including prosecutors and judges, should exercise their detention powers cautiously,considering the extreme nature of the detention measure, the heightened vulnerability of the child,and upholding the best interests of the child as a primary consideration, particularly in the current context of COVID-19. Alternative measures should be prioritized and promoted with all the due safeguards for the children and their families at this time;
Implement measures so that every child can maintain regular contact with her or his family throughcorrespondence and visits;
Provide every child deprived of his or her liberty with prompt access to specialized legal and otherappropriate assistance, and the method and means to challenge the legality of the deprivation ofliberty before a court or other competent, independent and impartial authority, and with a promptdecision on any such action;
Where children cannot be released or where alternative measures are not possible, take concretesteps to improve and maintain conditions in facilities where children are deprived of their liberty sothat they meet the relevant minimum international standards,x including with respect to child/staffratios, and to provide children with necessary services.

2.3 Safeguarding Against Discrimination

States should implement safeguards against discrimination:

States should provide children deprived of their liberty with access to the same level of health careand other services available to children in the community, without discrimination;
States should put in place adequate measures to ensure gender-responsive approaches inaddressing the COVID-19 emergency in locations where children are deprived of their liberty,including providing for the special needs of babies and infants deprived of liberty with theirmothers, in particular breastfeeding mothers;
States should provide children who are deprived of their liberty with the same information providedto children in the community about the pandemic, as well as how to protect themselves, ensuringaccessible and child-friendly information;xi
States should not detain children living on the streets, recognizing their unique situation may makeit impossible to comply with some measures to halt the spread of COVID-19. In such case childrenshould be connected to national child protection authorities or non-government services.

Recommendations to ensure the urgent release, use ofalternative measures, and no new entries of childreninto detention during the COVID-19 pandemic

In accordance with binding international human rights law obligations on child justice and children deprived of liberty, and in line with the WHO Interim Guidance on the prevention and control of COVID-19 in prisons and places of detention (WHO COVID-19 Detention Guidelines), IASC Interim Guidance on COVID-19: Focus on Persons Deprived of Their Liberty (IASC Interim Guidance), Minimum Standards for Child Protection in Humanitarian Actionxii, States should prioritize the diversion of children away from formal justice processes and the use of alternatives to detention at all stages of criminal or administrative proceedings. To this end:

3.1 Prioritizing Children for Immediate Release States should immediately release children who can safely return to their families and communities. Where it is safe to do so and in consideration of the best interests of the child, including the increased risk of illness in detention, and taking into account the views of the child, States should prioritize release of children deprived of their liberty to their families, extended families, other family-based care, communities, or appropriate health care facilities:

All children and their caregivers who are deprived of their liberty together as a result of criminalprocess against the caregiver for nonviolent, minor or petty offences, and those due for release ornearing the end of their sentences;xiii
All children held in pre-trial detention regardless of the type of offence, as they are presumed to beinnocent;
All children who are deprived of their liberty for status offences (offences not considered a crime ifcommitted by adults);
All children at highest risk of complications due to infection, including those with pre-existingphysical and mental health conditions;
All children sentenced for nonviolent, minor or petty offences, and those due for release or nearingthe end of their sentences;
All children in immigration detention;xiv
All children detained under national security frameworks only for affiliation with an armed group;xv
Any other children for whom it has been determined feasible and safe to be released.

Consideration should be given to orders to effectuate mass release based on the above criteria and on the urgency of the situation.

States should provide support and engage with families and caregivers to enable the safe reintegration of children,xvi in line with their best interests, to their families and communities after release using case management processes – including: necessary travel authorizations, connecting families and children to health care (e.g. for COVID-19), mental health and psychosocial services (e.g. clinical care), services for violence prevention and response (incld. gender-based), educational services and other opportunities.

Steps that key justice actors can take to prevent deprivation of liberty and ensure release of children from detention during the COVID-19 pandemic

Police, Corrections Immigration, border guards and other law enforcement officials can:

Eliminate fines, reduce charges, arrests and detention of children, including for containmentmeasures such as breaches of curfews/movement restrictions
Employ child-friendly and gender-sensitive techniques when interacting with children
Divert children from the formal justice system as early as possible after first contact, and at variousstages throughout the justice process
Review probation and supervision requirements of children (especially in-person visits) to enablephysical distancing where appropriate (for e.g. use of technology for meetings or supervision)
In immigration enforcement efforts, screen and immediately refer all migrant, asylum and refugeechildren and families, to the appropriate protection, child protection and care officials

Prosecutors, defense, and legal aid lawyers can advocate for:

Immediate or early release of children from all detention facilities (as per recommendations)
Diversion of children from the formal justice system as early as possible after first contact, and atvarious stages throughout the justice process
Priority use of non-custodial measure, including alternatives to detention and diversion programmes(as appropriate)
The issuance of broad pardons, amnesties, or general mass release orders

Courts can:

Reduce public/in-person hearings by implementing alternative modalities that do not comprise achild’s fundamental human rights to a fair trial
Consider the health consequences of any custodial sentence
Limit and minimize the use of all custodial sentences for children (both pre-trial and post-trial)
Divert children from the justice system
Increase use of non-custodial measures, including alternatives to detention and diversionprogrammes (as appropriate)
Issue broad pardons, amnesties, or general mass release orders

Law andpolicy makerscan:

Pass laws, policies and regulations that will reduce overcrowding in juvenile detention facilities andreduce the number of children deprived of their liberty, including

✓Immediately remove status offences from domestic legislation

✓The issuance of broad pardons, amnesties, or general mass release orders

✓Immediately de-criminalize irregular migration and other administrative migration-related infractions;

✓Expand access to safe, regular and orderly migration pathways and opportunities for regularization of migrants in irregular situations.

During the process of release, Governments should follow recommendations contained in the WHO COVID-19 Detention Guidelines and the IASC Interim Guidance for proper prevention, containment, management and treatment of the virus.

3.2 Preventing Admission of New Children to Detention Facilities

States should undertake all appropriate measures to prevent new admissions of children to places of detention. States should place an immediate moratorium on arrests, rounding up of children in street situations, overnight holds, and other new admissions of children to detention facilities. However, where a competent authority determines, considering the best interests of the child, that admission to a situation of a deprivation of liberty is legal, necessary, and proportionate in the individual circumstances, States must:

Screen all children (and caregivers when they are detained together) and take all steps consistentwith public health protocols issued by the World Health Organization;
Where physical distancing, isolation or quarantine of a child is warranted for health reasons thesemeasures should be taken at home or in a health care facility, not in a detention facility.

3.3 Protecting the Health and Well-being of Children in Detention

States should protect the continued health and well-being of children who remain in detention. Children who are not subject to immediate release measures and who are deprived of their liberty during the pandemic should be provided with access to services necessary to enable their continued health and wellbeing, including health care to address COVID-19 related needs, without discrimination. Authorities should:

Monitor children’s health for symptoms of the disease and take appropriate treatment andcontainment steps for any who exhibit such symptoms consistent with WHO guidelines for healthmonitoring, containment and treatment;
Make any decisions to place a child in medical isolation based only on medical necessity as a resultof a clinical decision and subject to authorization by law or the regulation;
Inform children placed in isolation for medical reasons of the reason why they are being isolated.xviiIf physical distancing or isolation is needed to safeguard the health of the child or others, thenhome-based or health-facility quarantine should be used consistent with WHO guidelines;
Never place a child in solitary confinement for any reason, as it is forbidden under international law,including for health reasons; health-related isolation should not be used de facto as solitaryconfinement or as a punishment;
Provide children with access to adequate health, nutrition, education, and legal services, andservices to address violence (including gender-based violence) and other services adapted to theneed for physical distancing or other disease containment measures;
Provide enhanced access to water, sanitation, hygiene services and supplies, particularly soap andwater, and provide facilities with necessary cleaning supplies to help prevent and manage spread ofthe infection;
Provide tailored, gender-sensitive and age-appropriate Mental Health and Psychosocial SupportServices (MHPSS) to children and their caregivers, including those with pre-existing mental healthand psychosocial problems and those experiencing distress and fear regarding COVID-19;
Implement procedures to allow children who are deprived of their liberty to maintain regular accessand contact with their guardians and families, including by: oInstructing facility staff to increase and provide regular updates (including by phone orcomputer) to families about the location, health and well-being of the child and to childrenabout their families;

oSupporting ways for children, in line with the WHO COVID-19 Detention Guideline, xviii tomaintain social connectedness, including in-person visits by family members, for example byextending visitation times and staggering visits to increase physical distancing or use oftechnology to facilitate interactions;

oWaiving fees or costs to families that may be associated with mobile or digital resourcesrequired to facilitate communication between children and their families;

oConsidering the need for issuing special travel exemptions for parents and families to allowthem to conduct visits.

Monitor and adjust the number of staff and service providers available in facilities where childrenare deprived of liberty to maintain sufficient staff to provide proper care and protection of childrenand to prevent children from shouldering excessive responsibilities related to maintenance andupkeep of the facilities, in the event that staff and service providers are exposed, infected, or ill withthe disease or otherwise prevented from continuing their duties.

States should be guided by the WHO COVID-19 Detention Guideline in respect of protection and support measures (for e.g. MHPSS including self-care orientation, and staff care support and services for their own mental health and psychosocial wellbeing) for staff of detention facilities.xix

3.4 Protecting Children from Violence, Abuse and Exploitation

States should safeguard the rights of children and protect them from violence, abuse and exploitation. Authorities should take steps to protect the rights of children who are deprived of their liberty and to minimize vulnerabilities to violence, abuse, neglect and exploitation which may be exacerbated by the disease or containment measures, or which may be a secondary consequence. Authorities should:

Develop a comprehensive coordinated plan to ensure well managed implementation and responseacross government to the COVID-19 pandemic and children in detention, that includes designationof child justice and social services as essential allowing continuity of such services. Cooperation andcollaboration should include justice, security, interior, immigration, finance, health, social welfareand education ministries and any other relevant authorities with authority over social and healthmeasures (including mental health and psychosocial care), resources, legal and other support, andcontact with families and communities;
Involve children in the process of developing the plan so as to effectuate their right to express theirviews and participate in decisions that affect them;
Establish and implement child safeguarding policies, procedures, and complaint mechanisms,including for the prevention of violence, abuse and exploitation;
Allow continued regular access and contact between children and their legal representatives,xx forexample by extending visitation times and staggering visits to increase physical distancing or usingtechnology to facilitate interactions, while still maintaining confidentiality of the interactions; use ofmobile/digital resources to facilitate communication should be free of charge;
Uphold due process and procedural guarantees, including allow court or administrative hearingsrelated to children, pre-trial detention periods,xxi and release to continue despite the COVID-19emergency (for example, technology solutions and flexible work arrangements to enable EmergencyCourts to sit);xxii
Allow inspection of all places where children are deprived of their liberty by independentinternational and national human rights bodies,xxiii health, and child protection authorities even infacilities and locations where infection may be present and including where individuals may beisolated for health reasons.

4. ResourcesIASC Interim Guidance on COVID-19: Focus on Persons Deprived of Their Liberty	Operational guidance on persons deprived of their liberty and COVID-19
WHO Interim Guidance on the prevention and control of COVID-19 in prisons and places of detention	WHO COVID-19 Detention Guideline
OHCHR COVID-19 and its human rights dimensions	OHCHR Covid-19 Guidance
United Nations Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment	Advice of the Subcommittee on Prevention of Torture to States Parties and National Preventive Mechanisms relating to the Coronavirus Pandemic (Advance unedited version) (adopted on 25th March 2020)
Penal Reform International Briefing on Coronavirus	A briefing note that contains Risks and practices from other countries
ILF Coronavirus Pandemic: Guidance for Legal Aid Providers to Protect Health and Human Rights of Detainees	Actions that legal aid providers can take to address the COVID-19 pandemic and limit the severity of the impact on people in detention
TDH Accelerate release of children from detention	Statement that contains guidance pertaining the release of children as a consequence of the COVID-19
Child Protection Area of Responsibility Child Protection Resource Menu for COVID-19	A collection of child protection resources related to a COVID-19 response
Alliance for Child Protection in Humanitarian Action resources on COVID-19	A collection of resources on COVID-19
Key messages and actions for coronavirus disease (COVID-19) prevention and control in schools	Operational guidance on protecting children and schools from COVID-19
INEE Resource Page on Novel Coronavirus (COVID-19)	A collection of COVID-19 and education in emergencies resources