Exacerbating, illuminating and hiding rights issues: COVID-19 and children in conflict with the law

ABSTRACT

This article explores the impacts of the response to COVID-19 on the rights of children in conflict with the law. It focuses on three significant rights issues: responding to all children as children (UNCRC, Article 1); non-discrimination (UNCRC, Article 2) and deprivation of liberty as a last resort (UNCRC, Article 37). Completing a Child Right's Impact Assessment, a structured approach to considering children's rights issues, helped us identify the key concerns around these three UNCRC articles. We argue that, while the COVID-19 pandemic has precipitated an erosion of children's rights for those in conflict with the law, the response to the pandemic has primarily compounded and illuminated pre-existing rights issues. It has also further hidden from view some children and their experiences. If we are to ensure that rights are respected, especially in future crisis scenarios, we need to ensure that upholding rights is not perceived as optional. This suggests greater efforts are needed to challenge deep-rooted societal and professional attitudes towards children in conflict with the law and their rights; to address fundamental societal inequalities, and; to strengthen the ability to challenge when rights are not respected.

KEYWORDS:

• Children
• justice
• COVID-19
• youth justice
• children’s rights

Introduction

There are a wide range of international instruments from the United Nations and the Council of Europe which prescribe the rights of children who are in conflict with the law, some of which are binding and others non-binding.¹ The United Nations Convention on the Rights of the Child (UNCRC) sets out the rights of all children and has some specific protections for children in conflict with the law. The UNCRC is supplemented by more detailed instruments establishing the rights of children who are in conflict with the law: United Nations Standard Minimum Rules for the Administration of Juvenile Justice (also known as the ‘Beijing Rules’), United Nations Guidelines on the Prevention of Delinquency (also known as the ‘Riyadh Guidelines’), United Nations Rules for the Protection of Juveniles Deprived of their Liberty (also known as the ‘JDL Rules’ or the ‘Havana Rules’).²,³,⁴ The United Nations, and the global human rights instruments it established, have been given further weight within the European context by the European Convention on Human Rights (ECHR), and individuals can complain about breaches of the Convention to the European Court of Human Rights (ECtHR). There is also a movement towards ‘child friendly justice’ driven by the Council of Europe,⁵ which in 2010 adopted specific ‘Guidelines for Child Friendly Justice’⁶ and in 2012 published its strategy for the rights of the child, which was designed to achieve ‘effective implementation of existing children's rights standards’.⁷ The guidelines on Child Friendly Justice collate international rights to provide practical guidance for member states to design their justice systems in a child-specific way.⁸

The body of international law, treaties, rules and guidelines outlined above collectively ‘defines the treatment of children in conflict with the law and prescribes the rights to which they are entitled’.⁹ Together they provide what is now a well-established ‘unifying framework’ for modelling juvenile justice statute, formulating policy and developing practice in all nation states to which they apply.¹⁰ However, in Lundy et al's important study of UNCRC implementation in 12 countries they found that in each country examined ‘the most vulnerable groups of children (separated children, asylum seekers, indigenous children, and children in conflict with the law) continued to fare less well compared to their peers’¹¹ and there is a danger that a focus on upholding rights for all could compound the disadvantage experienced by some of the most vulnerable. While higher levels of poverty and social exclusion play a role, some children are not seen as rights holders in the same way as others. In complex, emotive or politicised situations where children have caused serious harm to others this can pose a rights challenge for many societies and systems who believe that the wrongs of the child negate their rights, or struggle to balance what are perceived to be competing rights of ‘offenders’ and ‘victims’.¹²,¹³ Abramson argues that whilst the UNCRC has been positive in transforming life for children overall, juvenile justice is essentially peripheralised or disregarded, to the point of being ‘unwanted’.¹⁴ Therefore, even during the best of times there have been serious questions raised about the extent to which children in conflict with the law have, and can have, their rights upheld, without more fundamental social and political change. Obviously, COVID-19 and society's response to it, does not represent the best of times for many children across the world, particularly those most in need of care and support.

The main argument of this article is that COVID-19, and how it has been responded to, is exacerbating and illuminating pre-existing rights issues for children in conflict with the law, whilst also hiding from view some rights issues and some children's experiences. The article focuses on three fundamental issues that emerged through the structured completion of the CRIA about the experiences of the COVID-19 pandemic amongst children in conflict with the law in Scotland: definitions of children (UNCRC, Article 1), non-discrimination (UNCRC, Article 2) and deprivation of liberty (UNCRC, Article 37).

Method

This article draws on the analysis of children's rights implications for children in conflict with the law, completed as part of the Independent Children's Right's Impact Assessment (CRIA) commissioned by the Children and Young People's Commissioner Scotland.¹⁵ This involved a structured analysis of COVID-19 legislation, regulations and guidance interpreted through the lens of human rights instruments. The primary focus of analysis was the UNCRC, though the Beijing Rules, Havana Rules, Riyadh Guidelines, UN Standard Minimum Rules for the Treatment of Prisoners and the European Convention on Human Rights were also considered. As part of the CRIA, in order to incorporate the views and experiences of children in conflict with the law within the assessment, a period of rapid consultation with children and young people was undertaken in May 2020,¹⁶ early on in the pandemic and at the height of the ‘stay-at-home’ restrictions.

Due to the restrictions in place, two topic guides were developed to support practitioners to shape conversations with children (under 18) and young people (aged 18–26) whom they were currently supporting. These topic guides broadly asked children and young people to identify what the biggest issues facing children in conflict with the law were during the COVID-19 pandemic and what their experience had been with the restrictions introduced by the UK and Scottish Governments to manage the pandemic. Topic guides were distributed among the Children and Young People Centre for Justice's (CYCJ) existing networks and contacts, including practitioners and managers in local authorities, Secure Care Centres, the Scottish Prison Service and young adults with experience in the justice system with whom there was an existing relationship with CYCJ. This approach enabled the gathering of views for the CRIA in a ‘light touch’ way, from a known professional during a time in which many children and families were under considerable stress and pressure, but may also have influenced what children were willing to share (both potentially facilitating or hindering their ability to speak freely).

Consent was obtained from children and young people to share and report their anonymous perspectives and a total of 48 anonymised responses were received. In addition, the views of professionals were canvassed via a small number of questions shared with practitioner networks via email and also posed to practitioners in two pre-existing virtual meetings that were held during the period. In total, 36 responses were received from practitioners, either in writing or verbally, covering 19 of Scotland's 32 local authority areas, with responses predominantly from social work staff and third sector organisations.

As a result of the anonymous nature of the children and young people responses, it is not possible to report sample characteristics, although the method meant that responses were restricted to children and young people who were in direct contact, or who had existing relationships with support services and organisations. The CRIA upon which this article is based is therefore limited to the experiences of these specific children, young people and practitioners does not purport to be representative of all children, young people and professionals in contact with the justice system or those without access to support services. The dynamic nature of the pandemic, which is still ongoing at the time of writing, also meant that legislation, regulations, guidance and the provision of key services and supports (including education, courts and hearings) had to adapt to often fast-changing situations throughout the pandemic. The CRIA was therefore an assessment of the impact on children's rights at an early stage of the pandemic when there were highly disruptive and intrusive levels of lockdown restrictions but which, at that point, had been relatively short-lived and thus may not reflect current experiences and rights issues as a result of a prolonged global pandemic with varying levels of restrictions, cases and deaths. This article positions the findings of that CRIA within the wider research and policy landscape, in order to highlight how children in conflict with the law have had their rights further eroded during the COVID-19 pandemic.

Article 1: definitions of children

The UNCRC sets out that for the purpose of the convention ‘a child means every human being below the age of eighteen years’ ^{Article 1,} hence, all the rights in UNCRC are for all those under the age of 18. Further, in relation to children who have infringed penal law the UNCRC specifically acknowledges the need to take ‘into account the child's age and the desirability of promoting the child's reintegration and the child's assuming a constructive role in society’ ^{Article 40 (1)},¹⁷ The very existence of the UNCRC is an acknowledgement that those under the age of 18 should have specific rights because of their status as children (‘children's rights’), rights that are in addition to their broader human rights that apply to everyone (‘rights for children’).¹⁸

In Scotland, like many other jurisdictions, much of our policy and practice is confused about the definition of ‘children’. This is a particular issue for children in conflict with the law where there are complex issues associated with age-appropriate responsibility, particularly for older children. In Scotland there are very different pathways for 16- and 17-year-olds in conflict with the law who are either routed to the Children's Hearing System (Scotland's system for supporting children in trouble)¹⁹ or the criminal justice system. The decision about which route these 16- or 17-year-olds take is based on whether or not they previously had involvement with the Children's Hearing System and on the seriousness of the offences. For an overview of Scotland's approach to children in conflict with the law see ‘A Guide to Youth Justice in Scotland’.²⁰ There are also broader cultural and attitudinal issues for children in conflict with the law; for instance, acknowledging the status of being a child can be seen as excusing the seriousness of their actions, particularly when children commit more serious harms.²¹ This complex legal, policy and practice landscape, particularly for 16- and 17-year-olds, is the context in which then the specific issues associated with the response to COVID-19 should be understood.

New legislation associated with COVID-19 introduced a range of offences to respond to non-compliance with the restrictions designed to control the spread of the virus, such as orders to stay at home for all non-essential purposes. Critically, the Coronavirus Act 2020, the UK Government's initial piece of legislation to respond to the emergency situation caused by the pandemic, does not distinguish between penalties for children and adults for non-compliance in the restrictions it sets out in Schedule 21. This lack of distinction is concerning and could have significant consequences, as children in Scotland could receive a maximum 12-month custodial sentence for non-compliance. This represents a failure to recognise the specific circumstances of offending by children and the need to treat children differently, taking children's age and stage of development into account and acknowledging that 12 months for a child is a very different timeframe than for an adult. These penalties could have far-reaching and long-term consequences for children if they result in a criminal record; potentially breaching UNCRC Articles 1 and 40.

Practitioners’ experiences of supporting children in conflict with the law during the first lockdown phase of the pandemic highlighted that whilst in some areas of Scotland, offences being committed by children had reduced, in other areas there were reports of increases in shoplifting, antisocial behaviour and COVID-19 related offences such as coughing and spitting. Over time there were more serious concerns raised about increased vulnerability and criminalisation of children through organised crime and child criminal exploitation. Practitioners in a small number of local authority areas also reported an increase in the use of police warnings and children being held in custody for COVID-19 related offences. It is possible, therefore, that some children came into contact with the justice system due to specific issues associated with COVID-19 restrictions, and the policy and practice guidance suggests that the specific child status of those involved was not taken into account.

The policy response to COVID-19 also demonstrated the continued existence of complexity around the status of 16- and 17-year-olds in Scotland, and is in part due to the definition of a child in much of Scots Law being up to the age of 16. The Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020 initially permitted children aged over 16 to be issued with Fixed Penalty Notices for non-compliance with COVID-19 related restrictions; whereas the usual practice in Scotland would be to use more age-appropriate measures for such offences, such as Early and Effective Intervention (or referral to the Scottish Children's Reporters Administration). The use of Fixed Penalty Notices in Scotland was in contrast to the position in the rest of the UK where Fixed Penalty Notices only applied to those aged 18 and over. In recognition of the anomaly of the situation, this section of the legislation was subsequently amended via the Coronavirus (Scotland) (No2) Act, coming into force on 27 May 2020. However, it is of significance and it is revealing that this happened at all. An unknown number of children have been issued with Fixed Penalty Notices whilst the legislation allowing it was in place, between 27 March 2020 and 27 May 2020. By virtue of their age, the children involved may have difficulty paying their penalties, which could accelerate their escalation into the justice system. There is a lack of certainty about any opportunity for Fixed Penalty Notices issued during these two months to be revoked or challenged in light of this legislative change, and currently these charges may be retained on children's records for up to two years.²² Children who received a Fixed Penalty Notice before the amendment may also be subjected to detrimental labelling with the potential for negative ongoing police interaction (See Endnote 22). Further, 16- and 17-year-olds in Scotland still lack some of the safeguards available to children in England, Wales and Northern Ireland. For instance, in Scotland 16- and 17-year-olds can be charged for non-compliance with testing powers (Coronavirus (Scotland) 2020 Act). It is therefore clear that respecting the rights of these older children in Scotland is a more complicated and challenging issue than for younger age groups, with 16- and 17-year-olds not always perceived or responded to as children in all contexts and circumstances. Therefore, Scotland has not always complied with the Committee on the Rights of the Child's recommendation that States ‘Prevent the arrest or detention of children for violating State guidance and directives relating to COVID-19′^{23:Recommendation 9.}

A further issue of particular relevance for this older cohort of children is about responding timeously to offences they committed as children. The need to respond in good time is an issue for all children, to ensure they are able to have a clear outcome without prior offending behaviours overshadowing a significant period of their childhood, thus potentially affecting their development and socialisation. However, an additional issue for these older children is their closeness to adulthood. If offences are not responded to quickly there is a risk that offences committed by children are punished through the criminal justice system when they have reached the legal age of adulthood. This can result in a lack of justice, with behaviour committed as a child treated as if it were committed by an adult, resulting in higher penalties and greater impacts related to the disclosure of offences. It can also mean that these young people just over the age of 18 then go through an adult system rather than one designed for children, which better takes into account issues of child development and their specific needs. This is a particular issue in the context of COVID-19 due to how the pandemic has affected the timescales for care and justice processes for children in conflict with the law.

In the initial stages of lockdown, legislation was passed in Scotland to ensure the timescales for children's hearings and justice processes as required by law were extended; Coronavirus (Scotland) Act 2020: Schedule 3 and 4) and Coronavirus (Scotland) (No2) Act: Schedule 2. These changes include extending the time limits for first diet or preliminary hearing, and the time limit for trial. These pieces of legislation also extend the timescales for emergency placements in secure care accommodation, for Child Assessment Orders and for Child Protection Orders. A potential consequence of these extensions is that a child can be deprived of their liberty for a longer period before the decision is reviewed by a court or Children's Hearing. A further consequence of COVID-19 is that there are significant challenges associated with staffing court buildings and processes, with increased staff absences and additional health and safety issues to factor into the process, increasing the time involved in delivering justice. The Edinburgh Bar Association²⁴ highlighted some concerns in this regard, with a submission to the justice committee highlighting that custody cases were not often heard until well into the afternoon, despite defence agents and persons in custody arriving early in the morning and that court cases were progressing unduly slowly due to difficulties in communication between justice agencies.²⁵

These delays have an impact on timescales and on the child's progression plans, for example, their ability to transition out of secure care and custody. Practitioners have noted the additional stress both delay and the uncertainty over timescales is causing children.

He was detained on remand in February [Feb, 2020 pre-COVID] and “fully committed” a week later. However last week [May 2020, during COVID] his case was reviewed (virtually) by the Court and his solicitor made the case for his release. The Sheriff deferred decision-making for a further 7 days … His remand was continued. I am deeply concerned about the impact upon this young man's well-being and how this decision interacts with his human rights

Importantly, there does not appear to have been specific attention paid to the need to prioritise children in court. This is in spite of the fact that for children, a delay of, for instance, six months, is much more significant than for adults. These delays also make it highly likely that some of these children will reach the age of 18 by the time cases come to trial, meaning they will be sentenced as an adult rather than a child. At this stage some important protections are removed, notably, requirements to disclose offences are often doubled for those over 18 (depending on offence type). The lack of consideration and allowances made for these older children indicates again the failure to apply UNCRC for all children under the age of 18 and highlights particularly how the child status of 16- and 17-year-olds is not recognised or prioritised.

Article 2: non-discrimination

The UNCRC makes clear that all children are entitled to these rights, regardless of their ‘race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status’ or the status of their parents or carers (United Nations, 1989: Article 2). Yet inequalities in relation to both access to justice, and treatment by the justice system have long been highlighted, from the mass incarceration policies of the US that have disproportionately affected people from disadvantaged communities and backgrounds²⁶; to the institutional racism of the Metropolitan Police Force investigating the racially motivated murder of black teenager Stephen Lawrence in 1993.²⁷

These injustices are not confined to history, merely a reflection of less tolerant and less inclusive times past. In the past year, the deaths of Black Americans George Floyd and Breonna Taylor at the hands of law enforcement, among many others, have prompted the reinvigoration of the Black Lives Matter movement globally. While deaths arising from the use of force by police are a less frequent occurrence in the UK, there are some notable exceptions such as the death of Sheku Bayoh in police custody in 2015.²⁸ Specifically relating to children, the Lammy Review highlighted the disproportionate representation of children from BAME backgrounds in the youth justice system in England and Wales²⁹ yet the latest statistics show that children from BAME backgrounds are still four times more likely to be arrested than White children, and the proportion of children from BAME backgrounds in custody was 49% in the year to March 2019, up from 45% the year previously.

Other minority groups are also over-represented within justice systems, both within Scotland and internationally. Almost two-thirds (62%) of children in custody at HMP & YOI Polmont were from the most deprived areas of Scotland,³⁰ as were 45% of Scottish children in secure care.³¹ Other research has found that children who are care experienced³²; or have additional needs and disabilities such as Autistic Spectrum Disorders,³³ speech language and communication needs^34,35 or other complex needs³⁶ are actively criminalised or otherwise disadvantaged within the justice system.

Both the direct health consequences and the indirect social, educational and economic impacts of the pandemic have brought the entrenched social and health inequalities in the UK, and internationally, into sharp focus. Even prior to COVID-19, children from deprived households shouldered a disproportionate bereavement burden.³⁷ In the past 18 months more deprived communities, and BAME communities, have borne the brunt of COVID-19 deaths, hospitalisations and the effects of ongoing health complications,³⁸ adding to family stress, trauma and bereavement. The ripples of the immediate economic shutdown as well as the longer-term impacts on economic prosperity and family finances mean that children are denied basic human rights such as sufficient food to eat³⁹ or the devices and digital access to engage with online education.⁴⁰ Although this digital exclusion predated the pandemic, COVID-19 has heightened the implications of such exclusion. Stay at home restrictions disproportionally affect children who live in overcrowded households, homes without access to private outside space, or households that are not safe due to familial factors such as domestic violence, abuse, neglect and substance abuse (See Endnote 15). Thus children who live in these circumstances may find it harder to comply with COVID-19 laws and regulations but will be more visible in public spaces due to the lockdown and children and young people also reported feeling unfairly targeted by Police Officers.

I’ve made an effort to stay in and keep my head down and the police have still been at my door blaming me for things

Furthermore, children and young people in general, but especially those with additional support needs, may find it more difficult to follow ever-changing public health rules and regulations which are often open to interpretation, or be able to articulate and justify their activities when they come into contact with those in authority, increasing the risk of criminalisation. Children may also find it more difficult to seek or access appropriate support, assistance and remedy when in conflict with the law, increasing the risk of rights violations and abuses.

Certainly, the policing response to the pandemic indicates an unequal approach. Returning to the already problematic use of Fixed Penalty Notices for children, analysis of their use found that they were disproportionately issued to children and young people, with one-fifth issued to people aged under 21, and were twelve times more likely to be issued to people living in the most deprived communities compared to the least deprived.⁴¹

Foster parents were given a FPN for a young person being allowed to leave the home but this had been after reports of an assault in the home. Some young people are worried about leaving their homes incase they get arrested.

There are echoes here of McAra and McVie's⁴² work about ‘the usual suspects’, describing how policing differs for different children and young people, with children from deprived backgrounds who hang around in public spaces 2.7 times more likely to face adversarial police action than more affluent children, and children from less affluent backgrounds more likely to be charged by the Police for the same behaviours as their more affluent peers.

For those children in conflict with the law, digital poverty and digital exclusion means that there is unequal access to justice when virtual methods are used as a means of delivering justice (courts/hearings) and accessing support. Research with 150 families revealed that 20% did not have access to all the devices that they need, and 16% of those surveyed accessed the internet via their mobile data (See Endnote 40). Yet, in the initial stages of the pandemic there were no face-to-face Children's Hearings, with many postponed or held virtually, and many families struggled to participate as access to a high-quality internet connection and internet-enabled device was a prerequisite.^43,44 This meant that those who were the most disadvantaged and in need of support were those who were also the least able to participate in or have access to justice. Even when face-to-face participation was permitted, the limited number of courts and hearings sitting disproportionately affected those with limited access to funds or transport.

'The court being closed causes problems, I had to borrow money to get to a different town to go to the court there, some people might not have money to get there and then they would get in even more trouble

The pandemic has also had an immediate and short-term impact on the supports, services and activities that are available to all children and which may prevent or reduce offending such as engagement in education, sport and leisure activities; maintaining social and family connections; accessing health and well-being advice and interventions.⁴⁵ However, it is likely that, as the pandemic recedes, children who were less disadvantaged to begin with will be able to draw upon their individual, familial and community resources and start the journey towards post-COVID recovery and growth. But for those children who were already at a disadvantage, or for whom there has been a disproportionate impact of the pandemic, the long-term effects of poverty, lack of educational attainment, criminal records, reduced employment opportunities and the lingering effects of anxiety, trauma, bereavement and other mental health issues remain to be seen. These are known risk factors for coming into conflict with the law,⁴⁶ and there are risks that there will be a new generation of children that grow up to be further disadvantaged and criminalised either directly or indirectly as a result of the COVID-19 pandemic.

Article 37: deprivation of liberty

The UNCRC states that the deprivation of liberty of children must be limited to the absolute minimum length of time, and only used as a very last resort. Although international children's rights law provides strict(er) rules regarding deprivation of liberty of children – rules that are meant to offer a higher level of protection compared to adults;⁴⁷ in reality, there is little evidence of these being put into practice. For instance, the Global Study on Children Deprived of their Liberty found that three-quarters of children deprived of their liberty for justice reasons were detained pre-trial.⁴⁸ The UK's Joint Committee on Human Rights has also highlighted that children in detention lack awareness of their rights, and both the knowledge and confidence to appeal if their rights have been breached while in detention.⁴⁹ Whilst we need to ensure that the rights of children are upheld while in detention, Lightowler⁵⁰ argues that there is a broader question of why children are being detained in the first place, and whether this is only done so where it is the best way to address the child's risks and needs. The Child Rights International Network (CRIN) has long argued that ‘the only justification for the detention of a child should be that the child has been assessed as posing a serious risk to public safety’.⁵¹

At the start of the pandemic, the United Nations High Commissioner for Human Rights⁵² highlighted the specific risks of COVID-19 in prisons and the United Nations Committee on the Rights of the Child (See Endnote 23) stressed that the effects of COVID-19 restrictions on children would have ‘grave physical, emotional and psychological effects’. The committee urged all states to release children from all forms of detention.

The early release of prisoners was approved by the Scottish Parliament with the passing of the Release of Prisoners (Coronavirus) (Scotland) Regulations 2020 on 4 May, 2020. The justification of early release is the grounds of ‘a necessary and proportionate response to the effects of coronavirus … for the purpose of protecting (a) the security and good order of prisons; and (b) the health, safety and welfare of prisoners and those working in prisons’.⁵³ This unfortunately paid little attention to human rights, and there was no specific consideration of children in prison or reference to children's rights. However, there is some evidence to suggest that Scotland did reduce the number of children detained in either a YOI or a prison over the course of the pandemic, although this was broadly reflective of established trends in the detention of children. In Scotland, in 2016 there was an average of 67 children in prison/YOI per day which had declined to an average of 34 by 2019,⁵⁴ reflecting clear policy recommendations that children should not be detained in these settings.^55,56 Over the course of 2020, the average daily number of children in prison/YOI in Scotland further reduced to 21 and which, although fluctuating, has rarely risen above 20 during the course of 2021 so far, reaching as low as 14 for a short time in the summer of 2021.⁵⁷

Of significance for children's rights though is that these regulations did not allow for the early release of those in prison prior to their trial, and what has been highly concerning during the pandemic is the proportion of children in YOI/prison in Scotland that are being held pre-trial (i.e. not convicted) or pre-sentencing (i.e. convicted but not yet sentenced). This meant that for the vast majority of the children in prison/YOI there was no mechanism for them to be released despite the context of COVID-19 materially changing the circumstances of pre-trial detention (e.g. by significantly increasing the length of time that children would spend in prison/YOI before trial) which, if known at the time, may have influenced sentencing decisions. Thus while in 2019 on average around 50% of children in YOI/prison in Scotland were there pre-trial/pre-sentencing, this had increased to 64% during 2020 and in the part-year to September 2021 was around 84%, with the majority of children still held at the pre-trial stage of the justice process (See Endnote 57),⁵⁸ This increase has been attributed to the ongoing impact of COVID-19 restrictions and factors such as court closures and delays, leading to a significant backlog that is predicted to last for years.⁵⁹

While concerns about the use and conditions of remand and detention for children were already being expressed pre-pandemic, the experience of being deprived of liberty has also been significantly altered by COVID-19. The pandemic has resulted in increased attention and new considerations about the health of those deprived of their liberty. According to Amnesty International⁶⁰ people in detention are at heightened risk from COVID-19 due to systemic factors which pre-date the pandemic such as health inequalities, poor living conditions and reduced access to healthcare as well as factors which made dealing with the COVID-19 pandemic especially challenging in detention, such as the ability to physically distance.

As a result, in Scotland during the pandemic, children in prison/YOI were locked in their cells for longer, had limited contact with family and friends and faced additional issues with seeing their legal representatives or support networks and services.

no contact with friends and family; locked up at 5pm, no information, nothing is getting done, no support, we don't know what's going on, no gym, only £2 been added as credit for phone calls for friends and family, lots of tension, prison politics, no video calls, visits or mobile phones in cells- said this was going to happen weeks ago

In May 2020 the Scottish Human Rights Commission⁶¹ expressed concerns that some adult prisoners were experiencing fundamental breaches of their human rights, including almost total confinement to their cells. While some form of education and recreation was made available to children in prison this was severely restricted. Given the significant time children spent alone in their cells, and the added impact that isolation can have on a developing child, they were in effect being held in solitary confinement. The UN Standard Minimum Rules for the Treatment of Prisoners (also known as the Nelson Mandela Rules) define solitary confinement as ‘the confinement of prisoners for 22 hours or more a day without meaningful human contact’ (rule 44). They state that prolonged solitary confinement – that is, beyond 15 days – is prohibited at all times, as it is regarded as a form of torture. The special Rapporteur on Torture states that the imposition of solitary confinement of any length, where involving children, constitutes a cruel, inhuman or degrading treatment. This is in direct violation of Article 7 of the International Covenant on Civil and Political Rights, Article 16 of the Convention Against Torture and Article 37a of the UNCRC and should be completely prohibited.^62,63

While some prison systems across the world have retained visits by adapting conditions for them (See Endnote 60), others, like the UK, have resorted to banning visitors, effectively depriving those in prison from their lifeline to the outside world. Many children have advised that what they have struggled with most about being in custody during the pandemic is this lack of face-to-face contact with their friends and family. For periods during the pandemic there was also a stop to lawyers, social workers and youth workers visiting children in YOIs/prisons in Scotland (See Endnote 16) further illuminating the breaches of rights of children in conflict with the law. Although video conferencing was set up, this tended to require staff mediation, reducing the confidentiality of communication and there were several months when children had little, and sometimes no, contact with professionals outside of the YOI (See Endnote 16). The Expert Review of Provision of Mental Health Services at HMP & YOI Polmont in Scotland (conducted pre-pandemic) highlighted key areas of improvement including the social isolation of children in custody, and the need to support engagement with family and friends.⁶⁴ For children in prison/YOI in Scotland COVID-19 has therefore exacerbated the rights issues associated with their detention, significantly increasing the proportion of children deprived of their liberty pre-trial, and making it even more likely that their experiences of prison/YOI will involve concerning levels of social isolation which has long-lasting consequences.

Discussion and conclusions

The international evidence is clear that children in conflict with the law are particularly vulnerable to rights violations for a range of complex reasons associated with attitudes and practices that view them as being undeserving of their rights; and due to competing rationales around the purposes of justice for children (punishment, welfare, rights and risks). The COVID-19 pandemic did not create the rights issues discussed in this article; issues of responding to 16–17-year-olds as children, the discriminatory impact of the justice system for particular groups of children and the over-use of deprivation of liberty are long-standing concerns for the justice system in Scotland and elsewhere (See Endnotes 9 and 48).⁶⁵ However, COVID-19 has exacerbated these issues, for instance, by introducing new offences which are more likely to criminalise already vulnerable children; reducing care, protection and support for children, with significant reductions in face-to-face support disproportionally impacting on those least well off; and increasing the delays in care and justice processes which is resulting in children spending significant amounts of time uncertain of their future, a major issue for children awaiting trial in YOIs/prisons.

COVID-19 has also illuminated pre-existing issues, bringing to the fore attitudes and practices that were previously often hidden or downplayed. This is perhaps most tellingly demonstrated by the two examples of Fixed Penalty Notices and the early release of prisoners. In both of these examples it is quite apparent that policy elites in Scotland either failed to consider the fact that these policies would apply to children, or failed to recognise that the 16- and 17-year-olds affected by these policies were children under UNCRC, and thus were entitled to specific rights based on this status. In the case of Fixed Penalty Notices, the policy was reversed, following concerns expressed by stakeholders in Scotland that they would apply to 16- and 17-year-olds, unlike in the rest of the UK. This suggested that there had either been an initial failure to identify the status of these children or a lack of concern about this. For the 16- and 17-year-olds in YOI/prison, it is apparent that there was never any serious consideration about the potential for early release for those on remand, or specific consideration of the need for this given their status as children, deprived of their liberty during a pandemic. What COVID-19 has therefore done in these instances is to highlight underpinning attitudes, a lack of concern or a lack of prioritisation of the needs of 16- and 17-year-olds as children. Despite the Scottish Government's commitment to incorporate UNCRC into domestic law, there is a lack of consistency about realising the rights of all children, particularly the older children in conflict with the law. It appears therefore that COVID-19 illuminated rights issues associated with Articles 1 and 37 of UNCRC by revealing deep-rooted attitudes about these children when policy makers faced the need to prioritise and respond quickly.

COVID-19 has also potentially further hidden from view children's rights issues, creating barriers to communication, engagement and understanding. It is noticeable that there is less evidence to draw on for this article about the discriminatory impacts of COVID-19 on children in conflict with the law (Article 2). This does not suggest a lack of concern about children's rights associated with Article 2, but rather an absence in data and research. Some children are significantly less visible during a pandemic, with those who are deprived of their liberty, those who lack access to digital means of communication and those who are not prioritised for face-to-face support, then hidden from view. The impact on these children could have far-reaching consequences that follow them into adulthood and have further negative effects on their future prospects and prosperity. Little thought has yet been given to how some of the decisions associated with COVID-19 will have long-term consequences on the lives of those who were some of our most vulnerable children, including children in conflict with the law, and what can be done to reverse this.

With the unanimous passing of the UNCRC (Incorporation) (Scotland) Bill in March 2021, public authorities will soon (pending the passing of an amended Bill following the Supreme Court judgement in October 2021) be required to act in a way that upholds and promotes children's rights and crucially, it means that authorities and organisations can be held accountable if this does not happen. This incorporation cannot come soon enough, as the pandemic has highlighted is that if we are to ensure that rights are respected at all times, and especially in future crisis scenarios, we need to ensure that upholding rights is not perceived as optional, that children's rights must apply to all those under the age of 18 and that we need to better understand and support children who are most discriminated against, socially isolated and hidden from view.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Additional information

Notes on contributors

Fiona Dyer

Fiona Dyer is the Director of the Children and Young People's Centre for Justice (CYCJ), University of Strathclyde.

Claire Lightowler

Claire Lightowler is former Director of CYCJ and current Law student.

Nina Vaswani

Nina Vaswani is the Research Lead at CYCJ.

Notes

1 Ursula Kilkelly, ‘Youth Courts and Children's Rights: The Irish Experience’, Youth Justice 8, no. 1 (2008): 39–56, https://journals.sagepub.com/doi/abs/10.1177/1473225407087041.

2 United Nations, ‘Standard Minimum Rules for the Administration of Juvenile Justice. “the Beijing Rules”’, (Adopted by General Assembly Resolution 40/33, 29 November: Office of the High Commissioner for Human Rights, 1985).

3 United Nations, ‘Guidelines for the Prevention of Juvenile Delinquency, “the Riyadh Guidelines”’, (Office of the High Commissioner for Human Rights. Adopted by General Assembly resolution 45/112, 14 December, 1990).

4 United Nations, ‘Rules for the Protection of Juveniles Deprived of Their Liberty (1990) “the Havana Rules”’, (Office of the High Commissioner for Human Rights. Adopted by General Assembly Resolution 45/113, 14 December, 1990).

5 Barry Goldson and John Muncie, ‘Towards a Global “Child Friendly” Juvenile Justice?’, International Journal of Law, Crime and Justice 40, no. 1 (2012): 47–64, http://www.sciencedirect.com/science/article/pii/S175606161100084X

6 Council of Europe, Guidelines of the Committee of Ministers of the Council of Europe on Child-Friendly Justice (Strasbourg: Adopted by the Committee of Ministers of the Council of European 17 November 2010. Council of Europe, 2010).

7 Committee of Ministers of the Council of Europe, ‘Council of Europe Strategy for the Rights of the Child (2012–2015)’, (Strasbourg, CofE, 2012).

8 K. Hollingsworth, ‘The Utility and Futility of International Standards for Children in Conflict with the Law. The Case for England’, in The Routledge International Handbook of Criminology and Human Rights, eds. L Weber, E. Fishwick, and M. Marmo (London: Routledge, 2017).

9 Ursula Kilkelly, ‘Youth Justice and Children's Rights: Measuring Compliance with International Standards’, Youth Justice 8, no. 3 (2008): 187–92, https://journals.sagepub.com/doi/abs/10.1177/1473225408096458.

10 Barry Goldson and Gordon Hughes, ‘Sociological Criminology and Youth Justice: Comparative Policy Analysis and Academic Intervention’, Criminology & Criminal Justice 10, no. 2 (2010): 211–30, https://journals.sagepub.com/doi/abs/10.1177/1748895810364460.

11 L. Lundy, U. Kilkelly, B. Byrne, and J. Kang, The UN Convention On the Rights of the Child: A Study of Legal Implementation in 12 Countries (London: UNICEF-UK and the Centre for Children's Rights, Queens University Belfast, 2012).

12 Claire McDiarmid, ‘Making Best Interests Significant for Children Who Offend: A Scottish Perspective’ (Cambrudge: Cambridge University press, 2016).

13 Raymond Arthur, ‘Recognising Children's Citizenship in the Youth Justice System’, Journal of Social Welfare and Family Law 37, no. 1 (2015): 21–37, https://doi.org/10.1080/09649069.2015.998006 .

14 Bruce Abramson, ‘Juvenile Justice: The Unwanted Child’, in Juvenile Law Violators, Human Rights and the Development of New Juvenile Justice Systems, eds. E. Jensen and J. Jepsen (Oxford: Hart, 2006).

15 C. Lightowler, and D. Nolan, Children in Conflict with the Law and Children in Secure Care: Children's Rights Impact Assessment (CRIA), 2020. https://cypcs.org.uk/resources/independent-childrens-rights-impact-assessment-on-the-response-to-covid-19-inscotland-appendix-9/.

16 Debbie Nolan, ‘Spend Time with Me’: Children and Young People's Experiences of Covid-19 and the Justice System (Glasgow: Children and Young People's Centre for Justice, 2020).

17 United Nations, The United Nations Convention on the Rights of the Child (New York: United Nations, 1989).

18 L. Ferguson, ‘Not Merely Rights for Children but Children's Rights: The Theory Gap and the Assumption of the Importance of Children's Rights’, International Journal of Children's Rights 21(2013): 177–208.

19 J. Kilbrandon, ‘Children in Trouble*’, The British Journal of Criminology 6, no. 2 (1966): 112–22, https://doi.org/10.1093/oxfordjournals.bjc.a048919.

20 Children and Young People's Centre for Justice, ‘A Guide to Youth Justice in Scotland: Policy, Practice and Legislation’, in Section 1: Background, Policy and Legislation (Glasgow: CYCJ, 2020).

21 Nessa Lynch, ‘Towards a Principled Legal Response to a Children Who Kill’, Youth Justice 18, no. 3 (2018): 211–29.

22 Together Scotland, Analysis of Scottish Government's Response to UN Committee's 11 Recommendations (Edinburgh: Together Scotland, 2020).

23 United Nations Committee on the Rights of the Child, 11 Recommendations in Response to the Covid-19 Pandemic (New York and Geneva: United Nations, 2020).

24 Edinburgh Bar Association, ‘Submission to the Justice Committee’, (2020).

25 Edinburgh Bar Association, ‘Letter to the Justice Committee’, (2020).

26 Loïc Wacquant, Punishing the Poor: The Neoliberal Government of Social Insecurity (Durham, NC: Duke University Press, 2009).

27 William MacPherson, The Stephen Lawrence Inquiry (London: The Stationary Office, 1999).

28 Remi Joseph-Salisbury, Laura Connelly, and Peninah Wangari-Jones, ‘“The UK Is Not Innocent”: Black Lives Matter, Policing and Abolition in the UK’, Equality, Diversity and Inclusion: An International Journal 40, no.1 (2020):21-28

29 David Lammy, ‘The Lammy Review: An Independent Review into the Treatment of, and Outcomes for, Black, Asian and Minority Ethnic Individuals in the Criminal Justice System’, (London, 2017).

30 G. Robinson, J. Leishman, and C Lightowler, Children and Young People in Custody in Scotland: Looking Behind the Data (Glasgow: CYCJ, 2018).

31 R. Gibson, Aces, Places and Status: Results from the 2018 Scottish Secure Care Census (Glasgow: CYCJ, 2020).

32 Kristina Moodie and Debbie Nolan, “Between a Rock and a Hard Place”: Responses to Offending in Residential Childcare (Glasgow: CYCJ, 2016).

33 Claire King and Glynis H Murphy, ‘A Systematic Review of People with Autism Spectrum Disorder and the Criminal Justice System’, Journal of Autism and Developmental Disorders 44, no. 11 (2014): 2717–33.

34 Pamela C. Snow, Mary Woodward, Monique Mathis, and Martine B. Powell, ‘Language Functioning, Mental Health and Alexithymia in Incarcerated Young Offenders’, International Journal of Speech-Language Pathology 18, no. 1 (2016): 20–31.

35 Karen Bryan, Gillian Garvani, Juliette Gregory, and Karen Kilner, ‘Language Difficulties and Criminal Justice: The Need for Earlier Identification’, International Journal of Language & Communication Disorders 50, no. 6 (2015): 763–75, https://onlinelibrary.wiley.com/doi/abs/10.1111/1460-6984.12183.

36 Eileen Baldry, Damon B. Briggs, Barry Goldson, and Sophie Russell, ‘Cruel and Unusual Punishment’: An Inter-Jurisdictional Study of the Criminalisation of Young People with Complex Support Needs, Journal of Youth Studies 21, no. 5 (2018): 636–52, https://doi.org/10.1080/13676261.2017.1406072 (accessed May 28, 2018).

37 S. Paul, and N. Vaswani, 'The Prevalence of Childhood Bereavement in Scotland and its Relationship with Disadvantage: The Significance of a Public Health Approach to Death, Dying and Bereavement', Palliative Care and Social Practice 14 (2020): 1–12.

38 Gareth Iacobucci, ‘Covid-19: Increased Risk among Ethnic Minorities Is Largely Due to Poverty and Social Disparities, Review Finds’, BMJ: British Medical Journal (Online) 371 (2020): m4099.

39 J. C. Parnham, A. A. Laverty, A. Majeed, and E. P. Vamos, ‘Half of Children Entitled to Free School Meals Did Not Have Access to the Scheme During Covid-19 Lockdown in the UK’, Public Health 187 (2020): 161–4, https://www.sciencedirect.com/science/article/pii/S0033350620303875 (accessed October 1, 2020).

40 Includem, Staying Connected: Assessing Digital Inclusion During the Coronavirus Pandemic (Glasgow: Includem, 2020).

41 Susan McVie, Data Report on Police Use of Fixed Penalty Notices under the Coronavirus Regulations in Scotland (Edinburgh: Scottish Centre for Administrative Data Research, 2021).

42 Lesley McAra and Susan McVie, ‘The Usual Suspects?: Street-Life, Young People and the Police’, Criminology and Criminal Justice 5, no. 1 (2005): 5–36, https://journals.sagepub.com/doi/abs/10.1177/1466802505050977.

43 Robert B. Porter, Fern Gillon, Fiona Mitchell, Nina Vaswani and Emma Young, ‘Children's Rights in Children's Hearings: The Impact of Covid-19’, The International Journal of Children's Rights 29, no. 2 (2021): 426–46, https://brill.com/view/journals/chil/29/2/article-p426_426.xml .

44 Robert B.Porter, Fiona Mitchell, Fern Gillon, Emma Young and Nina Vaswani, Experiences of Virtual Children's Hearings: A Rapid Consultation (Glasgow: CELCIS, 2020).

45 Scottish Government, Coronavirus (Covid-19): Impact on Children, Young People and Families – Evidence Summary September 2020 (Edinburgh: Scottish Government, 2020).

46 David P Farrington, Rolf Loeber, and Maria M Ttofi, ‘Risk and Protective Factors for Offending’, in The Oxford Handbook of Crime Prevention (2012): 46–69.

47 T. Liefaard, ‘Deprivation of Liberty of Children’, in International Human Rights of Children, eds. U. Kilkelly and T. Liefaard (New York: Springer, 2019).

48 M Nowak, ‘Global Study on Children Deprived of Liberty’, vol. General Assembly Seventy-Fourth session, (United Nations, 2019).

49 Joint Committee on Human Rights, ‘Youth Detention: Solitary Confinement and Restraint. Nineteenth Report of Session 2017–19’, (2019).

50 C. Lightowler, Rights Respecting? Scotland's approach to children in conflict with the law. Glasgow: CYCJ, 2020. https://cycj.org.uk/wp-content/uploads/2020/01/Rights-Respecting-Scotlands-approach-to-children-in-conflict-with-the-law.pdf.

51 Child Rights International Network (CRIN), ‘Inhuman Sentencing: Life Imprisonment of Children around the World’, (Child Rights International Network, 2015).

52 United Nations High Commissioner for Human Rights, ‘Un Rights Chief Urges Quick Action by Governments to Prevent Devastating Impact of Covid-19 in Places of Detention’, (2020).

53 Scottish Government, Policy Note – for the Coronavirus (Scotland) Act 2020 (Release of Prisoners Regulations 2020) Ssi 2020/138 (Edinburgh: Scottish Government, 2020).

54 Scottish Prison Service, Annual Prison Population [Data Tables] (Edinburgh: Scottish Prison Service, 2020).

55 Independent Care Review, ‘The Promise’, (Glasgow: 2020).

56 HM Inspectorate of Prisons for Scotland, Report on an Expert Review of the Provision of Mental Health Service for Young People Entering and in Custody at HMP YOI Polmont (Edinburgh: HMIPS, 2019).

57 Scottish Prison Service, ‘Prison Population’, (Edinburgh: Scottish Prison Service, 2021, http://www.sps.gov.uk/Corporate/Information/SPSPopulation.aspx

58 Children and Young People's Centre for Justice, ‘Children on Remand in Scotland's YOI/Prisons’, (Glasgow, CYCJ, 2020), http://www.cycj.org.uk/what-we-do/children-in-remand-in-scotland/.

59 C Fullerton. ‘Scotland Coronavirus: Sheriff Courts Facing Three-Year Backlog’, The Herald (2021), https://www.heraldscotland.com/news/19227720.scotland-coronavirus-sheriff-courts-facing-three-year-backlog/ (accessed 5th April 2022).

60 Amnesty International, ‘Forgotten Behind Bars: Covid-19 and Prisons’, (2021).

61 Scottish Human Rights Commission, Human Rights and Prison Conditions During Covid-19 (Edinburgh: SHRC, 2020).

62 Her Majesty's Inspectorate of Prisons, ‘Report on Short Scrutiny Visits to Category C Prisons’, (London: HMIP, 2020).

63 HM Inspectorate of Prisons, ‘Children in Custody 2019–20’, (London, HMIP, 2021).

64 S. Armstrong and J. McGhee, Mental Health and Wellbeing of Young People in Custody: Evidence Review (Glasgow: The Scottish Centre for Crime and Justice Research, 2019).

65 Roger Smith, ‘Children's Rights and Youth Justice: 20 Years of No Progress’, Child Care in Practice 16, no. 1 (2010): 3–17.