Explainer: Solitary confinement of children in prison
Australian Governments must prohibit the solitary confinement of children in detention and closely regulate practices that can result in the forced isolation or segregation of a child.
What is solitary confinement?
Solitary confinement is the isolation of detainees for 22 hours or more a day without any meaningful human contact.[1] It involves the involuntary placement of a child in a room (often with limited ventilation and natural light) from which they are unable to leave, denying the child meaningful contact with peers, therapeutic professionals or family.
Across Australia multiple terms are used to describe certain detention practices that can amount to solitary confinement in given situations, including: isolation, segregation, seclusion and separation.[2] The use of these different terms and the lack of consistency in the governing legislation and/or policies across states and territories has resulted in a broadening of circumstances in which a child may be isolated in a room or cell without meaningful human contact.
Why solitary confinement should be prohibited
International human rights law strictly prohibits the use of solitary confinement on children as evidence shows that this practice can have severe, long-term and irreversible effects on a child’s health and wellbeing.[3]
In other words, solitary confinement should be prohibited because of the risk posed to the emotional, psychological and physical health and wellbeing of children.[4] Proven negative health effects include insomnia, confusion, compounded trauma, hallucinations and psychosis.[5] Children are particularly vulnerable because they are undergoing crucial stages of development socially, psychologically and neurologically and these developmental processes can be interrupted or damaged as a result of isolation.[6] Additionally, most children in youth detention have a history of trauma or disadvantage. Approximately two thirds are victims of childhood abuse, trauma or neglect and may have a disability or mental health issue, which are exacerbated by being placed in solitary confinement.[7] Where children are at risk of suicide or self-harm, isolation is likely to increase their distress and suicidal ideation and rumination.[8]
Because of the harm caused by solitary confinement, the Australian Children’s Commissioners and Guardians stated in 2016 that ‘solitary confinement constitutes cruel, inhuman or degrading treatment’ and therefore affirmed that ‘children should never be subjected to solitary confinement’.[9]
Recent Australian research
Victoria
The Victorian Children’s Commissioner recently undertook an inquiry into the use of isolation, separation and lockdown practices in Victorian youth justice facilities.[10] The Commission looked at isolation as part of a ‘separation plan’ to address behaviour or vulnerability; isolation to prevent harm to a child, others or property; and isolation through cell confinement due to staff shortages. It found that no matter what the purpose or intention behind the isolation, ‘the result was usually the same: children and young people enclosed alone between four walls with limited access to fresh air, human interaction, stimulation, psychological support and, in some circumstances, basic sanitation’.[11] The Commission went on to make over 20 recommendations including legislative and policy reforms, improvements to staff training and practices, increased transparency, reporting and regular reviews of practices to specifically clarify the purpose of isolation and to confine the circumstances under which a young person can be isolated.[12]
Northern Territory
The Northern Territory’s laws and policies permitting isolation were also reviewed as part of the inquiry by the Royal Commission into the Protection and Detention of Children in the Northern Territory. The Commission found that the laws in place were often inappropriately and unlawfully used as punishment and as a behavioural management tool. The Commission found that unlawful and inappropriate isolation practices were allowed to occur ‘due to careless management, poorly drafted directives that were not at all appropriate for youth detention, badly trained and inexperienced staff, inadequate facilities and a punitive approach to managing children and young people… Broadly worded legislation also enabled unjustified isolation to occur.’[13]
The Commission went on to recommend legislative and policy reforms to prohibit the isolation of a child for behaviour management or punishment and to prohibit extendable periods of isolation beyond 24 hours, to clearly define the circumstances in which a child could be isolated and to provide stronger protections and safeguards.[14] These recommendations are consistent with human rights standards and international law that strictly prohibit ‘solitary confinement’ and any other punishment that may compromise the physical or mental health of a child or young person.
How solitary confinement should be prohibited in law
State and Territory youth justice legislation, policies and internal guidelines should be amended to strictly prohibit the use of solitary confinement and to clearly define the circumstances for legitimate separation.
There will be situations in detention when it is necessary to separate a child to prevent an imminent and serious threat to the child or others or for legitimate health reasons and only when all other means have been exhausted provided it does not place restrictions on a child’s access to education, physical activity or family contact’.[15] Accordingly, in addition to the prohibition on solitary confinement, the legislation and internal policies and guidelines applicable to youth detention facilities should be amended to provide definitional clarity and strict safeguards to confine the circumstances in which separation can occur. Safeguards should, for example, include:
clear preconditions for the use of separation, including that it can never be used for punishment and can only be used as an absolute last resort when all other measures to address a child’s behaviour or risk (including de-escalation strategies) have been exhausted;[16]
a requirement that the individual circumstances of the affected child be taken into account and an assessment be conducted of the likely impact a period of separation will have on a child’s physical and mental health;[17]
non-extendable timeframes for how long a child can be separated and regular review to ensure it does not extend longer than required;[18]
a requirement that a separated child still be provided with access to family, lawyers, therapeutic professionals, teachers and appropriate peers, access to education including educational material, access to outdoor exercise or recreation at regular time intervals, and access to appropriate recreational material including reading material.[19]
a requirement that a separated child be seen by a health professional prior to their separation, or within a reasonable timeframe after separation;[20] and
a requirement that precise and transparent records and data be maintained and regularly published about the number of children separated and the circumstances surrounding their separation.[21]
This explainer is not legal advice
The contents of this publication do not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as legal advice. You should seek legal advice or other professional advice in relation to any particular matters you or your organisation may have.
References
[1] United Nations Standard Minimum Rules for the Treatment of Prisoners (‘Mandela Rules’) UN Doc E/CN.15/2015/L.6/Rev.1, rule 44.
[2] Australian Children’s Commissioners and Guardians, Human rights standards in youth detention facilities in Australia: the use of restraint, disciplinary regimes and other specified practices (April 2016), 60.
[3] United Nations Standard Minimum Rules for the Treatment of Prisoners (‘Mandela Rules’) UN Doc E/CN.15/2015/L.6/Rev, Rule 45(2) and Havana Rules, para 67. See also Committee on the Rights of the Child, General comment no. 10, UN Doc CRC/C/GC/10 (25 April 2007); Juan E. Mendez, ‘Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment’, UN Doc A/HRC/28/68 (5 March 2015), para 86(f).
[4] Committee on the Rights of the Child, General comment no. 10, UN Doc CRC/C/GC/10 (25 April 2007). See also CRC/C/15/Add.151, para. 41; CRC/C/15/Add.220, para. 45 (d); and CRC/C/15/Add.232, para. 36 (a).
[5] ‘The Istanbul Statement on the use and effects of solitary confinement’ (9 December 2007) International Psychological Trauma Symposium, Istanbul.
[6] Australian Children’s Commissioners and Guardians, Statement on conditions and treatment in youth justice detention (November 2017), 20.
[7] The Royal Commission has confirmed that ‘many children and young people enter detention with serious cognitive disabilities, mental illness, addiction to nicotine, alcohol and other drugs as well as physical deficits such as poor hearing and sight, and, in some cases, also functional illiteracy.’ Royal Commission into the Protection and Detention of Children in the Northern Territory, Interim Report, (31 March 2017), 38.
[8] Australian Children’s Commissioners and Guardians, Statement on conditions and treatment in youth justice detention (November 2017), 20.
[9] Australian Children’s Commissioners and Guardians, ‘Human rights standards in youth detention facilities in Australia: the use of restraints, disciplinary regimes and other specified practices’, April 2016, pp 63.
[10] Commission for Children and Young People, The same four walls: inquiry into the use of isolation, separation and lockdowns in the Victorian youth justice system (Melbourne: Commission for Children and Young People, 2017), 5.
[11] Ibid.
[12] Ibid, 18-19.
[13] Children’s Commissioner NT, Don Dale Youth Detention Report to Minister, September 2015; Commonwealth, Royal Commission into the Protection and Detention of Children in the Northern Territory, above n 22, 332.
[14] Commonwealth, Royal Commission into the Protection and Detention of Children in the Northern Territory, Findings and Recommendations (November 2017), Recommendation 14.1.
[15] Australian Children’s Commissioners and Guardians, Human rights standards in youth detention facilities in Australia: the use of restraint, disciplinary regimes and other specified practices (April 2016), 63; Australian Children’s Commissioners and Guardians, Statement on conditions and treatment in youth justice detention (November 2017), 20.
[16] Commission for Children and Young People, The same four walls: inquiry into the use of isolation, separation and lockdowns in the Victorian youth justice system (Melbourne: Commission for Children and Young People, 2017), recommendations 2 and 16; Commonwealth, Royal Commission into the Protection and Detention of Children in the Northern Territory, Findings and Recommendations (November 2017), Recommendation 14.1.
[17] Australian Children’s Commissioners and Guardians, Human rights standards in youth detention facilities in Australia: the use of restraint, disciplinary regimes and other specified practices (April 2016), 63.
[18] Commonwealth, Royal Commission into the Protection and Detention of Children in the Northern Territory, Findings and Recommendations (November 2017), Recommendation 14.1.
[19] Ibid.
[20] Ibid.
[21] Australian Children’s Commissioners and Guardians, Human rights standards in youth detention facilities in Australia: the use of restraint, disciplinary regimes and other specified practices (April 2016), 63; Commission for Children and Young People, The same four walls: inquiry into the use of isolation, separation and lockdowns in the Victorian youth justice system (Melbourne: Commission for Children and Young People, 2017), recommendations 20 and 21; and further see Committee on the Rights of the Child, Concluding observations of the fifth periodic report of the United Kingdom of Great Britain and Northern Ireland, UN Doc CRC/C/GBR/CO/5 (12 July 2016).