In his report to the UN Human Rights Council (A/HRC/28/68), the Special Rapporteur, Juan Mendez, focuses on children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment. The Special Rapporteur explores the international legal framework and standards protecting children deprived of their liberty from being subjected to torture or other ill-treatment and from experiencing developmentally harmful and torturous conditions of confinement. He also examines specific statutes and standards applying to prevent torture and ill-treatment of children deprived of liberty, and shortcomings in the practical implementation of legal standards.
The term “deprivation of liberty” is defined in the report as "any form of detention or imprisonment or the placement of a child in a public or private custodial setting where that child is not permitted to leave at will by order of any judicial, administrative or other authority (A/68/295, para. 27). Deprivation of liberty involves more severe restriction of motion within a narrower space than mere interference with liberty of movement: it includes police custody, remand detention, imprisonment after conviction, house arrest, administrative detention, involuntary hospitalization and institutional custody. It also includes children deprived of their liberty by private individuals or entities that are empowered or authorized by a State to exercise powers of arrest or detention." The Special Rapporteur specifically underlines that standards regarding children deprived of liberty apply "regardless of the form of deprivation of liberty, whether criminal, institutional or administrative". The report includes a section on the situation of children in institutions (p.10) and ill treatment in that context.
Of particular note, the report states:
"The Special Rapporteur has previously recognized that ill-treatment may occur in a diverse range of settings, even where the purpose or intention of the State’s action or inaction was not to degrade, humiliate or punish the child. He notes that most instances of ill-treatment of children deprived of their liberty outside of the criminal justice system, such as children in administrative immigration detention or institutional settings, involve acts of omission rather than commission, such as emotional disengagement or unsanitary or unsafe conditions, and result from poor policies rather than from an intention to inflict suffering. Purely negligent conduct lacks the intent required under the prohibition of torture, but may constitute ill-treatment if it leads to pain and suffering of some severity (A/63/175, para.49). This is the case when the suffering is severe and meets the minimum threshold under the prohibition against torture and other ill-treatment, when the State is, or should be, aware of the suffering, including when no appropriate treatment was offered, and when the State has failed to take all reasonable steps to protect the child’s physical and mental integrity." (p. 11)
"One of the most egregious forms of abuse in health and social care settings is unique to children. Numerous studies have documented that a child’s healthy development depends on the child’s ability to form emotional attachments to a consistent caregiver. Children need more than physical sustenance; they also require emotional companionship and attention to flourish. Unfortunately, this fundamental need for connection is consistently not met in many institutions, leading to self-abuse, including children banging their head against walls or poking their eyes. In reaction, care-givers use physical restraints as a longterm solution, or hold the children in cages or their beds, practices that have been linked to muscular atrophy and skeletal deformity." (Para 56. p.12)
The Special Rapporteur also pays particular attention in his report to the situation of children deprived of their liberty in health-care institutions, particularly children with disabilities, as well as children in rehabilitation centers and administrative immigration detention institutions.
