A call upon young people in the justice system to participate in Covid-19 times
By Maartje Berger (Netherlands)
Young, healthy, happy, lonely, vulnerable, limited, bored, safe or not safe? These are some keywords addressing the state of young people confronted with measures taken due to the Covid-19 virus. During the so named ‘intelligent lock down’ in the Netherlands the streets and parks were suddenly empty. Schools and restaurants and many companies were closed. The life of children, as they knew it, changed completely. They were not allowed to visit their grandparents and, due to the schools closing, many parents became their teachers at home. Children were confronted with new rules for social activities, sports and meeting up with friends.
The impact of Covid-19 on children and young people in the justice system is even stronger, as the measures put important rights and procedural safeguards under pressure. All of a sudden children are receiving fines of €95 for social interactions such as playing together, standing too close to each other or gathering in a group when meeting up with friends in the park or at the beach. For children in the justice system their rights to a lawyer, education, treatment, visits and leave have been on hold for at least two months and procedures have changed fundamentally: courts have been closed, cases have been delayed, hearings have taken place via telephone and life within young offender institutions has become even more restricted.
Since mid May 2020 the Covid-19 measures are slowly becoming more flexible. Courts are opening their doors again prioritising youth cases (Letter Ministry of Justice and Security, 15 May 2020). However, procedural safeguards in the youth justice system will remain to be pushed and life within youth correctional centres will continue to be more restricted for an uncertain period of time. Human Rights organisations, such as UNICEF, Terre des Hommes and Defence for Children International, have already expressed their concerns and the Netherlands Committee of Jurists for Human Rights (NJCM) sent a letter to the Minister for Legal Protection. This was followed by questions of two members of Parliament addressing several violations in the justice system including the right to a lawyer, a fair trial and privacy. But for children, it is most important to participate in the decisions that affect them in the near future. It is now time to call upon nation states further to involve especially children in the justice system when making decisions for ‘(post) Covid-19 times.’
The impact of the Covid-19 measures on children in the youth justice system
What we could not imagine at the start of 2020 did occur. Global awareness that the spreading of the virus could only be stopped if we changed our way of living worldwide made us agree to stay at home and follow social distancing rules. Although children and young people suffer less from health problems due to Covid-19, the virus has a huge impact on their lives. Within the new reality common activities, such as developing social skills, attending school, taking part in sport and applying for or going to internships or jobs, are more difficult. Rules and restrictions now determine how to behave in public; for example, being outside and meeting in a group can be sanctioned with cautions by the police and/or a fine. Positive for Dutch children is that they receive smaller fines than adults for violating the rules. These will not lead to a criminal record. But for adolescents above the age of 18, the fine for not complying with the rules is 390 euro. This offence will be registered and therefore will create a criminal record. This could entail difficulties when applying for jobs and internships.
Extra restrictions in the living environment of children in youth correctional centres
Under these circumstances it is important to address the rights of children living in young offender institutions. Young people, already separated from their parents and their home environment, are even more affected by loneliness and isolation. Their living conditions became stricter within a short period of time. For them, but also for professionals, it is even more challenging to cope with the rules. For example, postponing treatment and education can’t be compensated in the same way as for children still living at home. Conditions are poorer for organising a digital environment in terms of good quality and guidance. The safety rules for access to the internet are stricter and there are fewer computers, tools and devices available.
Furthermore the measures taken due to the virus affect judges, youth lawyers, police, probation officers and staff working in the institution. Normally a lawyer and parents can visit children in (police) custody and assist them during police interviews and court sessions. Now in many cases, young people stay within the institution talking on the phone only in the presence of a staff member. Another rule is that young people are not allowed to go on leave, to put what they have learned inside into practice outside, that is, in the real world. This can have a negative effect on the duration of, for example, the length of youth detention or a treatment measure, because the purpose as agreed upon in the sentence plan is not carried out. When at the end of the sentence the goals for reintegration are not met, it may take longer before they can go back into society.
The right to (mental) health, development and to be heard
The right to the enjoyment of the highest attainable standard of physical and mental health is a fundamental right laid down in the International Covenant on Economic, Social and Cultural Rights (United Nations General Assembly, 1966). For children facing the consequences of the Covid-19 measures, additional children’s rights are even more relevant. These are laid down in the Convention on the Rights of the Child (United Nations, 1989), the EU directive on procedural safeguards for children who are suspects or accused persons in criminal proceedings (European Parliament and Council, 2016) and the EU directive on minimum standards on the rights, support and protection of victims of crime (European Parliament and Council, 2012) . These emphasise the right to life and development to the maximum extent possible taking into account the evolving capacities of children. But they also guarantee the right to privacy, necessary support, education and participation, giving governments the task of considering the views of children in a meaningful way.
‘We have to fight like lions’
One of a number of posters created by young people at Schakenbosch as part of a Covid-19 project.
In this new situation it is highly important to involve the younger generation in discussing issues concerning social distancing, long term effects and what they think are the important questions for now and the future. For the Netherlands it is challenging to involve young people when taking decisions following from Covid-19 policies that concern them. However, two months after the outbreak of the virus the Dutch prime minister made a remarkable call, asking young people and children directly to think about and to discuss how to move forward.
Calling upon the young generation ‘to start a revolution’
The voices of children telling us what is affecting them and what needs to be done to improve their situation need to be heard in a meaningful way. The call of the Dutch prime minister during a press conference on TV to ‘come up with ideas, talk about it in class and let us know’ has led to a wide range of responses from young people, teachers, parents and institutions. He then again asked the younger generation to be really practical, and to start talking to the head of school or community. It is like ‘starting a revolution.’ This is a chance for children and young people to share their views on the way their lives have changed. Not just by answering questionnaires. To be really involved they need means and empowerment to develop ideas, share views, start initiatives and look at the near future.
Extra attention is needed to hear from children in the justice system. Being prosecuted and/or locked up makes it far more difficult to start sharing views. For children living in closed institutions it is difficult and sometimes impossible to raise their voice. What means do they have to share what the impact is of the Covid-19 measures on their lives and what could help them throughout these difficult times? Governments need to reach out to young people living in young offender institutions to ask what their experiences and ideas are and what they need to continue their daily lives, programmes and treatment.
"… children themselves have a great role to play, they just need to be meaningfully informed and empowered. Some governments already started doing so with excellent results"
The rules for social distancing slowly become less strict than before, but will be applied for an uncertain period of time. It is now time to promote diversion and invest in a fair trial for children and a child friendly justice approach. In the Dutch system youth justice can be applied to adolescents under the age of 23. Keeping criminal records for a long time as a consequence of Covid-19 measures should not occur in cases of young people up to 23. As the caseload of criminal cases is huge, it is a good moment to further implement restorative justice methods, such as conferencing and mediation in penal cases. Extra attention is needed for children deprived of liberty. The distancing rules, causing less visits, less education and less activities, may already have led to further loneliness and isolation of children in a strict regime.
The state has a fundamental role to play in ensuring that children in young offender institutions are protected against extra harm as a consequence of Covid-19 measures. They need to be involved and enabled to build a future and a society where they can participate fully. The call upon children by the prime minister should actively include young people in the youth justice system. Besides asking children in the justice system to stick to the rules, they need to be listened to, informed on what is going on around them and empowered to get involved. Explain to them what they have to do when they don’t understand the rules or disagree.
This is also a call to ministers and politicians worldwide asking them actively to reach out and get in contact with children in young offender institutions to gather their views and ideas. And, last but not least, really listen to what they have to say on how to build a child-friendly justice system within the boundaries of necessary regulations to prevent the spread of the virus.
Listen to their ideas on how to compensate for their loss of freedom by letting them at least make use of their freedom of speech.
- European Parliament and Council (2012). Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA. [http://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1402239606289&uri=CELEX:32012L0029||EUR-Lex].
- European Parliament and Council (2016). Directive 2016/800/EU of the European Parliament and of the Council of 11 May 2016 on procedural safeguards for children who are suspects or accused persons in criminal proceedings. [http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32016L0800||EUR-Lex].
- United Nations (1989). Convention on the rights of the child. New York: United Nations.
- United Nations General Assembly (1966). International Covenant on Economic, Social and Cultural Rights. New York: United Nations. Resolution 2200A (XXI).
About the author: Maartje Berger is a children's rights expert and she works at Defence for Children the Netherlands. She can be emailed here: firstname.lastname@example.org