1. INTRODUCTION

Eekelaar’s work on children’s rights has, among other things, provided one of the keystone analyses of how the best interests principle and the right of children to be heard should interact. Much of this work was written when the UN Convention on the Rights of the Child (CRC) was in its infancy. His influential 1994 article ‘The Interests of the Child and the Child’s Wishes: The Role of Dynamic Self-Determination’ considered how making decisions that accorded with children’s best interests might be reconciled with treating children as rights-holders. He proposed a ‘dynamic self-determinism’ model that envisaged scope for the child him/herself to determine those interests.

Since that work was written, the CRC has become an important international human rights treaty, influencing policy, practice and legal systems around the world. The monitoring body for the Convention – the Committee on the Rights of the Child – has developed a vast body of work elaborating on CRC principles, most notably its General Comments. In this chapter, we revisit Eekelaar’s model in light of modern developments in international human rights law, particularly concerning Articles 3 (best interests), 12 (the right to be heard and to have due weight accorded to views) and 5 (the principle of the evolving capacities of the child) of the UN Convention on the Rights of the Child. We draw, in particular, on developments in three areas – court decisions, child protection and the digital environment and youth justice – to illustrate contemporary issues in light of Eekelaar’s approach.

2. EEKELAAR’S THEORY OF ‘DYNAMIC SELF-DETERMINISM’

The CRC entered into force in 1991; it is the most ratified international human rights law treaty, pointing to the impressive levels of consensus about its core principles. The CRC enshrines an impressive breadth of rights, and four provisions have been identified by the Committee on the Rights of the Child as ‘general principles’ of the Convention, to guide its implementation in all areas.

INTRODUCTION

International law is clear that children are rights holders, entitled to a range of rights under the Convention on the Rights of the Child (CRC) and numerous other international and regional instruments. Interestingly, the Convention is silent on whether the child has a right to access justice, although the Committee on the Rights of the Child has made it clear that children are entitled to remedies for breaches of their rights. In setting out this position, the Committee has focused on the availability and effectiveness of national rather than international mechanisms. However, the adoption of the Optional Protocol to the Convention on a Communications Procedure has now brought international remedies firmly into view.

Liefaard remarks that the concept of access to justice has ‘neither been carefully conceptualized, nor contextualized in relation to children’ and this is particularly true at the international level where there is a significant gulf between the acceptance of the child’s right to access justice and Children’s experience. It is the aim of this chapter to advance our understanding of these issues through an exposition of the child as a legal actor under the CRC.

THE CHILD AS A LEGAL ACTOR UNDER THE CONVENTION ON THE RIGHTS OF THE CHILD

As a legally binding international instrument, with almost universal ratification, the CRC is the benchmark against which a State’s treatment of its children is measured. The breadth of the Convention – which covers the full spectrum of rights including social, economic, and cultural rights, and civil and political rights – means Children’s rights must be protected, promoted and fulfilled in all aspects of their lives. The Convention confirms the status of children as rights holders and is clear that, notwithstanding the supporting role played by the child’s family, the responsibility to vindicate Children’s rights rests with the State. Article 4 recognizes that the State, as duty bearer, must take all appropriate measures to implement the Convention. Under Article 5, States recognize it is the responsibility of parents to provide the child with appropriate direction and guidance in the exercise of their rights in a manner consistent with their evolving capacities.

Child detention is a global phenomenon and, according to the United Nations Global Study on Children Deprived of Liberty, up to 250,000 children are deprived of their liberty in the justice system globally every day (Nowak, 2019, p 251). Despite the minimum standards set by the United Nations Convention on the Rights of the Child (CRC) (Liefaard, 2008), the Global Study reports that children in detention are exposed to breaches of their rights, as a result of little or no education or healthcare and poor regard for their development. While overcrowding and inadequate material conditions are experienced by children in poorer countries, children's rights everywhere are challenged by the deprivation of liberty, with minority children and children living in poverty disproportionately impacted. The gravity and complexity of the issues documented in the Global Study also highlight a failure – for multiple complex reasons – to protect the rights of children in practice. Despite numerous international instruments setting out children's rights standards in detention, real challenges in their implementation continue to persist.

In Ireland, significant progress has been made in improving the treatment of children in detention in line with international standards, and the past five years in particular have witnessed the reform of child detention, with a child-centred and rights-based model becoming the standard for everyone aged under 18 years in detention. To enable this process, the national facility – Oberstown Children Detention Campus – has undergone substantial change, developing a modern, purpose-built facility, professionalizing the workforce and embedding new ways of working to ensure that the children enjoy their rights to care and education, healthcare and programmes that prepare them for their return home or for transition to prison on reaching 18 years. The adoption of a new Children's Rights Policy Framework, which places the child at the centre of the decision-making process, is a milestone in advancing children's rights in detention. The transformation has not been without difficulty, however. Resistance to change and severe operational challenges threatened the viability of the reforms at times. However, the adoption of a range of strategic, policy and practical measures have now combined to deliver a changed environment, in which the rights of children are emerging centre stage.

Introduction

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. Article 37 recognizes that children deprived of liberty are entitled to respect for dignity and age-appropriate treatment and requires states to ensure that detention is ‘a measure of last resort’, used for ‘the shortest appropriate period of time’ (Article 37(b), CRC). Children must be separated from adults in detention, have the right to maintain contact with family through correspondence and visits, and the right to prompt access to legal and other appropriate assistance (Article 37(c) and (d), CRC). It is implicit in Article 37 that detention can cause children harm in light of their vulnerability and stage of development. In order to minimize this harm, and to prevent the child from reoffending, international instruments set out the rights to which children in detention are entitled and the measures that states must take to ensure those rights are protected.

Introduction

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. Finally, the chapter highlights the role of the Oireachtas (Parliament) and media in providing a further layer of public scrutiny. Overall, the chapter aims to illustrate the important role played by these various bodies in promoting the reform of child detention through an approach that scrutinized and challenged in equal measure. The chapter ends with some reflections on the impact of the intense scrutiny of the period.

International influences

The Committee on the Rights of the Child

Ireland ratified the United Nations Convention on the Rights of the Child (CRC) in 1992, meaning that the development of the modern Irish youth justice system took place in parallel with implementation of the CRC during this period.

Introduction

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. This chapter explains how these goals were achieved, in line with international standards. In order to track the progress achieved, the annual reports of the Health Information and Quality Authority (HIQA) inspection process help to provide an objective assessment of the various developments and improvements. First, to provide important context, the scale of the challenge is described.

Introducing the challenge

As described in Chapter 4, Irish law and policy provides that all children under 18 years of age who are detained by the courts should receive care and education in a single, specialized setting.

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. But it is impossible without political will and a long-term vision. Culture change requires a disruptive creativity and an almost mission-like desire to challenge orthodox thinking and question approaches that are mainstream. At the same time, vision has to come with substance. The vision has to be thought through so that the solution to the problem being solved is the right one, not the simplest.

Introduction

Chapter 5 outlined the various stages of the reform process designed to create a unified and specialist model of detention for children. Building on this analysis, this chapter considers the extent to which the rights-based model of detention is currently implemented in Oberstown. It examines the measures taken to implement an approach that is child-centred and fulfils the rights of the child to provision, protection, participation, preparation and partnership in a model to advance the rights of children in detention.

Child-centred care

At the heart of an approach designed to advance children's rights in detention is the requirement to take account of the needs of the child – Article 37 of the United Nations Convention on the Rights of the Child (CRC) – and to ensure that the ‘conditions and circumstances’ ensure respect for their rights (Havana Rule 12). The international standards require ‘individual assessments’ of need and ‘a multi-disciplinary approach’ (CRC Committee, 2019a, p 18).

International standards recommend that on admission to detention, the child should be interviewed and a comprehensive assessment of their health, psychological, educational and social needs undertaken so that the child's type and level of care, including security, can be identified. A plan of educational and training programmes should be developed in accordance with the child's individual characteristics, taking account of the child's views (European Rule 62.6). Information about the child's identity, their legal guardians, the reasons for the commitment and the date and time of admission should be recorded (European Rule 62), along with details of the child's personal property, information about the child's history including any education or welfare needs, and with regard to the child's protection, ‘any visible injuries or allegations of prior ill-treatment’ and any information about the risk of self-harm or other health conditions that are relevant to the child's physical and mental wellbeing (European Rule 62).

In line with these standards, Oberstown is committed to decision-making that is informed by the child's best interests. To enable this approach, every child's current and emerging needs are assessed on arrival and an individual plan is put in place to fulfil those needs.

Introduction

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.

The reform of child detention in Ireland

Contemporary reform of child detention in Ireland began with the introduction of the Children Act 2001, which introduced a new category of ‘children detention schools’, under the remit of the Department of Education, which detained girls and boys under 16 years of age in conflict with the law. Taken together, Trinity House School (1983), Oberstown Boys’ School (1991) and Oberstown Girls’ School (1991), all in Lusk, County Dublin, and Finglas Child and Adolescent Centre, nearer Dublin, could accommodate approximately 77 children (IYJS, 2008a). St Joseph's Clonmel (a former industrial school) could accommodate a further 40 children. The schools provided residential care, education and assessment services and they had varying levels of security (Kilkelly, 2006).

Introduction

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. Second, the chapter draws on reports by advocacy groups that identify key areas of concern nationally and internationally. Combined with the academic literature, the chapter considers the contribution of the Global Study on Children Deprived of Liberty in an effort to draw together the international themes relating to children's rights in detention.

Key global concerns

The CRC Committee regularly raises the treatment of children deprived of liberty in its national dialogue with state parties about the implementation of the United Nations Convention on the Rights of the Child (CRC), and its Concluding Observations reveal serious concerns about the rights of children in detention across a number of jurisdictions.

Introduction

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.

Safeguarding

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). Particular care must be taken of children who have experienced physical, mental or sexual abuse (European Rule 52.2) and measures must be in place to identify, report and follow up instances of maltreatment (Articles 19 and 39, CRC).

Oberstown complies with the national legislative safeguarding framework, based on the Children First Act 2015, and has an established system in place for the reporting, referral and follow-up of instances of harm and ill-treatment. A range of measures are in place to ‘safeguard children and protect them from abuse’ and safeguarding training is efficient and regular (HIQA, 2018, p 28). A full- time social worker performs the role of ‘designated liaison person’ to whom all referrals are made for onward reporting to the national authority – Tusla, the Child and Family Agency.