This general comment from the UN Committee on the Rights of the Child addresses children's rights in the child justice system, including issues relating to children recruited and used by non-State armed groups and children in customary, indigenous or other non-State justice systems. The objectives and scope of the present general comment include expanding the use of non-custodial measures to ensure that detention of children is a measure of last resort; and, for the few situations where deprivation of liberty is justified as a last resort, ensuring that its application is for older children only, is strictly time limited and is subject to regular review; among others.
The core elements of a comprehensive child justice policy, outlined in this general comment, include laws containing a wide variety of non-custodial measures and prioritizing the use of such measures to ensure that deprivation of liberty is used only as a measure of last resort and for the shortest appropriate period of time; giving weight to the child’s best interests as a primary consideration as well as to the need to promote the child’s reintegration into society; and a a maximum penalty for children accused of crimes in recognition of the harm caused to children and adolescents by deprivation of liberty, and its negative effects on their prospects for successful reintegration.
In regards to deprivation of liberty, including pretrial detention and post-trial incarceration the general comment draws attention to "the 2018 report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, in which the Special Rapporteur noted that the scale and magnitude of children’s suffering in detention and confinement called for a global commitment to the abolition of child prisons and large care institutions, alongside scaled-up investment in community-based services (A/HRC/38/36, para. 53)."
The general comment outlines the leading principles for the use of deprivation of liberty, including that no child is to be deprived of his or her liberty unlawfully or arbitrarily. Other noteworthy paragraphs regarding deprivation of liberty include:
86. The Committee notes with concern that, in many countries, children languish in pretrial detention for months or even years, which constitutes a grave violation of article 37 (b) of the Convention. Pretrial detention should not be used except in the most serious cases, and even then only after community placement has been carefully considered. Diversion at the pretrial stage reduces the use of detention, but even where the child is to be tried in the child justice system, non-custodial measures should be carefully targeted to restrict the use of pretrial detention.
88. In application of the principle that deprivation of liberty should be imposed for the shortest appropriate period of time, States parties should provide regular opportunities to permit early release from custody, including police custody, into the care of parents or other appropriate adults. There should be discretion to release with or without conditions, such as reporting to an authorized person or place. The payment of monetary bail should not be a requirement, as most children cannot pay and because it discriminates against poor and marginalized families. Furthermore, where bail is set it means that there is a recognition in principle by the court that the child should be released, and other mechanisms can be used to secure attendance.
94. Every child deprived of liberty has the right to maintain contact with his or her family through correspondence and visits. To facilitate visits, the child should be placed in a facility as close as possible to his or her family’s place of residence. Exceptional circumstances that may limit this contact should be clearly described in law and not be left to the discretion of the authorities.