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According to the CRC: "No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or
imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last
resort and for the shortest appropriate period of time;" (Art. 37.b); "A variety of dispositions, such as care, guidance and supervision orders; counselling; probation; foster care; education and vocational training programmes and other alternatives to institutional care shall be available to ensure that children are dealt with in a manner appropriate to their well-being and proportionate both to their circumstances and the offence" (Art. 40.4).
According to additional sources:
a. Alternatives to pre-trial detention -
- Release of the child to the care of a parent, guardian, extended family member or other 'responsible adult' (in some countries this includes designated NGOs and community organisations), with or without certain conditions such as: bail; the need to report regularly to a police station pending summons to the trial; compliance with a curfew; agreement not to contact the victim/survivor.
- Regular reviews: Once a child is placed in pre-trial detention circumstances can change that enable their release from detention. e.g. once the child's identity has been established and/or their parent(s) or family member(s) located, and/or an NGO / responsible adult is able and willing to assist.
- Monetary bail: Payment of a sum of money by the suspect in exchange for release which is refunded only if they return as ordered. However, this is to be discouraged as it discriminates against poor children. Monetary bail is often imposed unnecessarily as a condition for releasing a child into the community pending trial, even when there is no reason to suspect that the child is a flight risk and this results in the unnecessary pre-trial detention of many poor children and children in street situations.
b. Alternatives to post-trial detention -[1]
The CRC and Beijing Rules emphasise that, in order to reduce the detention of children, judges
should be provided with a wide variety of non-custodial sentencing options, with flexibility to tailor
the sentence to the individual child. In many countries, “social inquiry” reports prepared by a social
worker are used to help the Court to gain a fuller understanding of the child’s circumstances, and
therefore better determine the most appropriate resolution.
A comprehensive continuum of sentencing options should ideally include the following (in order from
least intrusive to most intrusive):
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Judicial Reprimand: an official caution or warning by the trial judge.
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Fines: used less frequently against children. They may create inequalities because children without parental support, or from poor families, often cannot afford to pay fines and therefore face a more severe sanction. At minimum, the amount should have regard to the child’s ability to pay, and the law should not allow imprisonment of a child for non-payment of a fine.
- Written or verbal apology to the victim/survivor.
- Written essay on the effects of the crime committed to help the child gain insight into the consequences of his/her behaviour.
- Compensation or Restitution Order: child makes some payment or performs some service to make amends to the victim/survivor (ideally including an option for non-monetary forms of restitution where the child/family cannot afford to pay).
- Community Service Order: the child performs a specified number of hours of work to benefit the community. Unlike fines, which are often paid by a child’s parents, community service can be an effective way for children to be held personally accountable for their wrong-doings. The most effective community service placements are those that require children to work alongside positive adult or peer role models, that give children an opportunity to practice and demonstrate competent and responsible behaviours, and that make the child feel valued and that they are using their skills to make a contribution to the community. However, it must not involve exploitative, harmful or humiliating work, or interfere with a child’s schooling. Menial work (such as washing police cars) has limited effect. In order to ensure effectiveness and keep the child engaged / interested, the number of hours should not be excessive (i.e. not above 120) and the serving of hours should preferably be blocked (e.g. over school holidays) rather than spread out over a long period of time.
- Behavioural contracts, generally with conditions such as a curfew and agreements not to associate with specified negative peers.
- Referral to a peer education / youth mentoring programme.
- Guidance and Supervision Order: places the child under the supervision and guidance of a specified adult or peer mentor (generally a volunteer) in order to monitor and guide the child’s behaviour.
- Curfew order: imposes a restriction on a child's liberty between specified hours (usually at night) for a specified period of time where the child has to remain at a specified location/address, e.g. curfew between 9pm to 7am for 3 months at a named NGO night shelter.
- Agreement to attend life skills or other competency development programme. These are specialised programmes designed to help children address the underlying problems that contributed to the offending behaviour. Issues commonly addressed include responsible decision-making, communication skills, problem-solving, conflict resolution, developing self-esteem, and anger management. These programmes may involve work with families, as well as the child.
- Agreement to attend school and/or vocational skills training. In some cases, this may require support from local authorities or other agencies to provide the assistance necessary (such as school fee reduction or exemption) to allow the child to return to school or gain access to skills training. In some countries "regular school attendance" is both an alternative sanction and a diversion option.
- Counselling/Treatment Order: to address the underlying problems that contributed to the child’s offending behaviour, and to reinforce positive traits or resiliency, e.g. anger management, problem solving, family counselling, addiction treatment, sex offending.
- Probation Order: placement of the child under the supervision of a professional probation officer or social worker for specified period of time (usually 6 months – 2years). This may involve varying levels of supervision and intervention, depending on the seriousness of the crime and the needs of the child. In many countries, probation amounts to little more than a monthly “check-in” with an official. However, the most effective probation programmes are those that go beyond mere supervision and surveillance to include individually tailored services designed to address the factors that contributed to the offending behaviour, including competency development programmes, education, vocational training, family counselling, and treatment for drug or alcohol addiction. The probation officer performs a case management function, referring the child/family to services available in the community.
- Intensive Probation/Home Supervision: frequent contact with a probation officer/social worker, intensive child/family support, and limits on movements outside the home except for pre‐approved activities.
- Day Reporting Centre: non-residential centre‐based program providing both intensive day‐time supervision and programs/services directed at preventing re-offending. The child is required to report to the facility on a daily basis at specified times, but returns home to parents in the evening.
- Suspended / Postponed Sentence: a penalty of imprisonment is imposed on the child, but “suspended” for a specified period, during which the child must abide by certain conditions (generally that s/he not misbehave, or participates in some rehabilitation programme). Note that suspended sentences are not full non-custodial options, since any misbehaviour or violation of the conditions of the suspension can result in automatic application of the original term of imprisonment.
- Open Care Facilities: residential placement of a child in a group home or other unlocked, open care facility. Generally used for children who have committed non-violent or less serious offences, but are without parental care and therefore do not qualify for other non-custodial options. They provide children with the necessary level of support and supervision, but avoid the negative consequences associated with placement in a closed facility. The children attend education and vocational training within the community with other non-offending youth, thus preventing marginalisation and stigmatisation.
There is significant overlap with the list of examples for diversion. This is because the types of programmes available for 'diversion' should also be made available as alternative sentences.
Although not 'alternatives to detention', the following measures are also available in some countries to minimise time spent in detention:
- Sentences with a 'combined custodial element':although still detention, the reduced component of custody can be useful. Courts can also, where there is a parole system in place, reduce the non-parole period of a custodial sentence.
- Giving credit to time spent awaiting trial in custody: not all states recognise fully the time served in detention awaiting trial. Although this does not avoid custody, it does reduce the time spent serving a custodial sentence.
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The document here provides a brief summary of 4 sample alternatives to detention projects from the Tajikistan, Kenya, Papua New Guinea and South Africa.
Click here to download sample project descriptions for alternatives to detention
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Footnotes:
1. Adapted from UNICEF EAPRO, Legal System Building Tool – Justice for Children (internal document, not for circulation), pp.39-40.
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