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A Model for International Reform

The UN Global Study on Children Deprived of Liberty detailed many children’s poor experiences in detention, highlighting the urgent need for reform.

Applying a child-centred model of detention that fulfils the rights of the child under the five themes of provision, protection, participation, preparation and partnership, this original book illustrates how reform can happen. Drawing on Ireland’s experience of transforming law, policy and practice, and combining theory with real-life experiences, this compelling book demonstrates how children’s rights can be implemented in detention.

This important case study of reform presents a powerful argument for a progressive, rights-based approach to child detention. Worthy of international application, the book shares practical insights into how theory can be translated into practice.

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Despite the proliferation of international instruments setting standards and expectations for the protection of children’s rights, significant gaps remain between these standards and children’s lived experiences of their rights in detention (Liefaard, 2008). The failure to adequately protect and fulfil the rights of children deprived of liberty is well documented (Nowak, 2019), while the disproportionate effects of detention on children from minority and disadvantaged backgrounds now dominate international discourse. While there is extensive literature – from academic and other sources – on children in detention, the aim of this chapter is to take a global view of children’s experiences of their rights in detention. Accordingly, the chapter presents a global perspective not on children in detention per se, but on the implementation of international children’s rights standards in detention. In this regard, it aims first to identify the main gaps that exist between children’s rights in theory and their enjoyment in practice. Second, in considering some of the reforms taking place, the chapter details the advocacy and academic contributions that have helped to underpin these changes. Overall, the chapter seeks to provide the reader with a global lens through which the challenges of advancing children’s rights in detention can be understood.

The chapter draws on a range of materials. First, it considers the observations of the international human rights bodies that examine state progress in the implementation of children’s rights in detention. Particular use is made of the Concluding Observations of the United Nations Committee on the Rights of the Child (the CRC Committee) and the reports of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment of Punishment (the CPT) and other such bodies.

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The United Nations Convention on the Rights of the Child (CRC) was adopted in 1989 and is the most highly ratified instrument in human rights law, setting the minimum standards to which children are entitled across their childhood (Tobin, 2019). The Committee on the Rights of the Child (the CRC Committee) has played an important role, interpreting the CRC in its General Comments and helping to improve implementation at a national level through the state party reporting process (Sloth-Nielsen, 2019). Over the years, the CRC’s standards have been supplemented by instruments adopted at international and regional levels, producing a now comprehensive framework for the legal protection of children’s rights.

Children who come into conflict with the law were an early concern of the international community, resulting in two substantial provisions in the CRC – Articles 37 and 40 – that address the child’s rights in youth justice and detention (Liefaard, 2020). Article 40(1) of the CRC recognizes the right of children in conflict with the law to be treated in a manner consistent with their sense of dignity and worth, reinforcing the child’s respect for the rights and freedoms of others and which takes into account the child’s age and the desirability of promoting their reintegration into society. It requires states to have regard to the child’s due process rights and prescribes measures of specialization and diversion as key to the rights-based approach to youth justice.

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Chapters 3 and 4 traced the development of Irish law and policy on youth justice and detention and introduced the law and governance arrangements with respect to the child-centred approach to detention in Ireland. The national goal of introducing this model for all children under 18 years of age, in line with international standards, was clear. In practical terms, this had two main elements. First, the three remaining children detention schools were to be merged, creating a specialist national facility providing child-centred care for all children on detention and remand orders, including those previously held in prison – Oberstown Children Detention Campus. Second, the construction of the new facility was designed to ensure that the child-care model took place in an appropriately designed, modern environment. This chapter documents how these two goals were achieved, through a process of change and development.

If the destination of national policy was clear, it did not come with a map as to the route. As Tilley and Jones (2013, p 93) note with regard to managing change in health and social care, ‘[w]hile the case for change may be strong, there is no blueprint or formula for making it work’. In the case of Oberstown, a series of interconnected measures were required to effect the necessary change. These included: the design and completion of the new building; the creation of a new model of care for child detention that is consistent with children’s rights; and the development of a supportive environment for staff, through clarity of purpose and direction.

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Having traced the development of Irish youth justice law and policy in Chapter 3, this chapter focuses more specifically on child detention, providing an historical and then a more contemporary point of reference for the reforms outlined in the rest of the book. Ireland has a long tradition of over-reliance on institutional care and, throughout the 20th century, children in industrial and reformatory schools suffered harsh and often abusive conditions (O’Sullivan and O’Donnell, 2012). Although the separation of children from adult prisoners took place as early as 1906 (Osborough, 1975), it was not until 1985 that proposals were made in the Whitaker Report (Commission of Inquiry into the Penal System, 1985) for a more enlightened model of detention for children, in small residential settings, with qualified and skilled staff (Sargent, 2016). In effect, however, rights-based reform of child detention took decades to achieve and required the adoption of a range of legal and administrative measures, including legislative reform, clear national policy and significant capital investment. The first part of this chapter sets out the role that these measures played in enabling the reform of child detention in Ireland. The second part introduces the current legal framework and governance arrangements for Oberstown Children Detention Campus, the national child detention facility in Ireland, while it also introduces the particular circumstances of the children who are detained there. In these respects, it provides important context for the deeper analysis that takes place in the chapters that follow.

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Article 4 of the United Nations Convention on the Rights of the Child (CRC) requires that state parties adopt all appropriate legislative, administrative and other measures to implement children’s rights and research has shown that these measures combine to enhance children’s lived experiences of their rights (Kilkelly et al, 2021). As the international children’s rights standards make clear, child detention does not exist in a vacuum, but rather is part of the national response to children who come into conflict with the law. In this regard, this chapter traces the development of Irish law and policy in the area of youth justice, from a history of institutionalized care to a more progressive, rights-based approach. The chapter begins with a brief history of the Irish youth justice system, identifying the reforms that gave rise to the contemporary legislative framework. Administrative responsibility for youth justice is outlined and the policy developments and priorities are set out. The chapter ends with some conclusions about the nature of the Irish youth justice system, highlighting the importance of ensuring that the law and policy platform, on which detention is based, must itself be rights-based in order to advance children’s rights.

By most standards, Ireland is considered to have a mainly progressive approach to youth justice that largely coheres with international standards of children’s rights (Kilkelly, 2006). An overhaul of the legislative framework took place during the 1990s, coinciding with Ireland’s ratification of the CRC in 1992 and following several decades of parliamentary review and inquiry into the child welfare, reformatory and industrial school systems (Sargent, 2016).

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This final chapter aims to draw together the book’s analysis of the experience of implementing children’s rights in detention. To recap, Chapter 1 explained the imperative for a children’s rights approach to detention and, drawing on a range of international instruments including the United Nations Convention on the Rights of the Child (CRC), proposed an integrated model of child detention that advances children’s rights. Under this rights-based model, child detention must be child-centred and fulfil the child’s rights to provision, protection, participation, preparation and partnership. As Chapter 2 illustrated, children’s rights are routinely breached and ignored in detention around the world, although proposals for more radical, rights-based reforms are beginning to emerge. Many of the issues highlighted internationally were concerns in Ireland as well – use of adult prisons, inadequate standards of care, high levels of restrictive practices, insufficient focus on the child’s complex needs and a marginalization of children within the process – when the commitment was set out in law and policy to establish a specialist, child-centred model for all children under 18 years of age in detention. Ireland’s experience is thus highly relevant to the global context and Chapters 3 to 9 explored how the commitment to advance a children’s rights approach to detention has been implemented in Oberstown. It began in Chapter 3 by tracing changes to law and policy that followed Ireland’s ratification of the CRC in 1992, before focusing, in Chapter 4, on the specific requirement, set by government policy, to establish a child-centred model of detention for all children under 18 years of age. These chapters provided the foundation for the more in-depth analysis that followed.

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It is an African proverb that it takes a village to raise a child – a community must share its resources, its knowledge and its wisdom if the potential of the child is to be fulfilled. The same is true of Oberstown in that it took a myriad of influences and influencers over many, many years, to create, shape and implement the vision of rights-based detention for children in Ireland. This book demonstrates that it is possible to put in place a model of child-centred care for children deprived of liberty by explaining the measures, actions and steps required to make it happen. However, we are not naïve enough to think that the Oberstown ‘job’ is done. It will take many more years of hard work and commitment before the change we document here is embedded and the potential of the rights-based approach fulfilled. Nor do we suggest in documenting Ireland’s experience, that this is a case study capable of being replicated anywhere. There are simply too many variables to do justice to a comparative analysis, but we do want to conclude this book with a reflection on where else this could happen. In what circumstances could such a project be a success?

Although it is difficult to say with certainty, we consider the following factors to be important. First, we know that the most important starting point is a political commitment to children’s rights, to high standards, to wanting something better than prison-like conditions for children. Building consensus around rights-based detention is difficult without a strong, informed civil society, a respect for international instruments, which reflect consensus on these issues, and the work of international organizations that can be leveraged for reform at a national level.

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It has been observed that despite some weaknesses, international children’s rights standards on youth justice are ‘an effective benchmark against which law, policy and practice can be measured’ (Kilkelly, 2008a, p 191). Of course, in the absence of effective enforcement mechanisms, implementation of standards depends on the advocacy, support and scrutiny of national and international bodies. Ireland has an active human rights community and children’s sector with organizations that have actively influenced the reform of child detention in Ireland. As a state party to multiple United Nations and Council of Europe human rights treaties, Ireland is subject to the monitoring and scrutiny of these bodies, which have played a similarly important role in advocating reform. Given legitimate public concern, child detention has also been the subject of parliamentary scrutiny and media interest in Ireland, as elsewhere. All of this combined, in recent years, to place the reform of child detention under intense and regular scrutiny.

The aim of this chapter is to explore how these external influences helped to bring about the implementation of children’s rights standards in Oberstown Children Detention Campus. It begins with an analysis of the monitoring of child detention by the Committee on the Rights of the Child (the CRC Committee), the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) and the European Commissioner for Human Rights and the impact that their recommendations had on reforms. The chapter then moves to the national level where the impact of bodies such as the Children’s Rights Alliance, the Irish Penal Reform Trust and statutory human rights bodies is outlined.

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Chapter 6 considered the extent to which Oberstown Children Detention Campus has implemented the rights-based model of detention. While noting the progress made in the advancement of children’s rights to child-centred care, provision of need and preparation for leaving, the chapter concluded by noting the potentially transformative effects of fulfilling children’s rights under the themes of participation and partnership.

This chapter notes that protection rights are fundamental to children’s rights in detention in two ways. First, they relate to children’s need for protection with respect to trauma or injury experienced prior to coming to Oberstown. Second, they concern children’s right to protection from harm while in detention, including measures taken to protect themselves or others from injury. In exploring this important and challenging area, this chapter pays particular attention to restrictive practices such as separation and restraint, which have, as Chapter 2 noted, continued to threaten children’s protection rights around the world. In this context, this chapter identifies the measures taken to improve children’s rights to protection in Oberstown, highlighting some of the steps that have helped the transition towards a more rights-compliant approach.

Every child in detention has a right to be protected from harm and ill-treatment – under Article 19 of the United Nations Convention on the Rights of the Child (CRC) – and in light of the fact that children can be ‘highly vulnerable’, especially during the initial period of detention (European Rule 109), states are required to take measures to ‘protect their physical and mental integrity and foster their well-being’ (European Rule 52.1).

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