Freedom, one of the most fundamental words in the human rights vocabulary, has become relative. So, although all of us are experiencing restrictions on our liberty, we are still relatively free compared with those who are deprived of their liberty by an order of court.

In 2019 the United Nations concluded a Global Study on Children Deprived of their Liberty. It found that more than 400,000 children are locked up in detention facilities on any given day and this number grows to millions if one adds children in refugee detention centres, and children in institutions.

The global study found that detention has a profound impact on the mental health of children, at a time when their brains are in a rapid stage of development. This is a perennial cause of deep concern, but right now, during the worldwide Covid-19 crisis, in some countries, we are witnessing a crisis due to overcrowding, disease spread, and even an inability to provide sufficient food to child detainees. To be more accurate, we are not witnessing it, because these children are hidden from sight.

In a humanitarian crisis caused by infectious disease, there is an inevitable limitation of rights. But it is vitally important that we remain vigilant that these limitations are reasonable, proportionate, time-bound and non-discriminatory. We need to ensure that public health policy is balanced with human rights, including children’s rights.

In international law, the Convention on the Rights of the Child requires that children should not be detained, “except as a measure of last resort, and for the shortest appropriate period of time”. The Committee on the Rights of the Child, which oversees the implementation of the convention, issued a statement on 8 April, calling on states to “release children in all forms of detention, whenever possible, and provide children who cannot be released with the means to maintain regular contact with their families”.

Unicef and the Alliance for Child Protection in Humanitarian Action have issued guidance regarding children in detention in the past week, and states are being urged to act through three main strategies – preventing any new detentions, releasing children who are currently detained and thereby reducing overcrowding, and ensuring the rights of those remaining in detention. 

Many states have started releasing child detainees, including countries as diverse as Australia, Cambodia, Iran and some states of the United States. Although the media carried stories on Monday that sentenced prisoners had been released in South Africa, no mention was made of children. Surprisingly, it seems they were not selected as a category for release.

The data presented by South Africa to the UN Global Study on Children Deprived of their Liberty indicated that there were 1,267 children deprived of their liberty in the country in June 2018. There were 862 children detained awaiting trial – 110 of whom were in correctional facilities (sometimes referred to as prisons), and 752 in child and youth care centres, run by the Department of Social Development. There were 405 children serving sentences, 132 of whom were in correctional facilities and 273 in child and youth care centres. 

June 2018 was the last date on which comparable figures for children deprived of their liberty in South Africa have been in the public domain. This is a concern – data collection and management is essential for an effective system at any time – but it is even more crucial when governments must act in a crisis.

South Africa’s Constitution echoes the Convention on the Rights of the Child that child detention must be a measure of last resort and for the shortest possible period of time. According to the Child Justice Act, children awaiting trial in a child and youth care centre must be brought to court every 30 days, and children in correctional centres must be brought to court every 14 days. This is important so that children can report any concerns at their places of detention, and also for the opportunity to have their detention reconsidered.

At the beginning of lockdown, on 26 March, the Ministry of Justice issued regulations that prevented awaiting-trial detainees held in correctional centres being brought to court, unless for a first appearance, bail application or where special arrangements had been made. They also required that all matters where children were detained in child and youth care centres were to “be remanded in absentia”. The regulations significantly limited the rights of children in correctional centres as they missed their fortnightly opportunity to appear before a magistrate. They also affected the rights of some children in child and youth care centres who may have been due for their monthly appearance in court during that time. But such limitations seemed reasonable and proportionate as they were time-bound. However, as the three weeks became five weeks and with no clear end of lockdown in sight, it is time for changes to be made.

The Ministry of Justice is considering urgent measures to allow courts to consider the release of children who are awaiting trial. This will be a welcome adjustment, and the officials should work speedily to get the cases before the courts, and the courts must consider the release of children within the international and constitutional framework.

While the work to release children who are awaiting trial continues, the government should also turn its attention to sentenced children. Correctional Services should consider the immediate release of some categories of child offenders, or introduce early parole procedures. The law does not include parole for children serving sentences in child and youth care centres, but provisions of the Children’s Act could be used to allow their early release. Monitoring and support in the community could also be introduced for those children released, where this is considered necessary – and it is work that non-governmental organisations could assist with.

In the meanwhile, for those children who remain in detention, contact with their families is vitally important. The Committee on the Rights of the Child has advised that “children should at all times be allowed to maintain regular contact with their families, and if not in person, through electronic communication or telephone. If the period of emergency, disaster or state-ordered confinement is extended, consideration should be given to reassessing the measures that prohibit such visits”.

In 2019, South Africa ratified the Optional Protocol to the Convention Against Torture, which requires oversight mechanisms for all persons in places of detention. South Africa’s oversight mechanism for correctional centres is the Office of the Inspecting Judge of Prisons. But other detention centres reside under the oversight mechanisms set up under the South African Human Rights Commission. As Level 4 of the lockdown signals the return of the Chapter 9 institutions to work, it is hoped that they will be visiting the 31 child and youth care centres holding child detainees throughout the country, and ensuring that the rights of all children in those centres are protected. DM/MC

Ann Skelton is a professor of law at the University of Pretoria and a member of the UN Committee on the Rights of the Child.