Young, Accused and Detained; Awful, But Lawful? Pre-Trial Detention and Children’s Rights Protection in Contemporary Western Societies
| Author | Yannick van den Brink |
| DOI | 10.1177/1473225419884658 |
| Published date | 01 December 2019 |
| Date | 01 December 2019 |
https://doi.org/10.1177/1473225419884658
Youth Justice
2019, Vol. 19(3) 238 –261
© The Author(s) 2019
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DOI: 10.1177/1473225419884658
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Young, Accused and Detained;
Awful, But Lawful? Pre-Trial
Detention and Children’s Rights
Protection in Contemporary
Western Societies
Yannick van den Brink
Abstract
This article explores the underlying explanations of the high reliance on pre-trial detention of children across
contemporary Western societies, with a particular focus on the Netherlands. Empirical research findings
are used to identify patterns and functions of pre-trial detention in the administration of youth justice. In
addition, two driving forces behind pre-trial detention decision-making are explored after scrutinizing the
penological underpinnings of youth justice and youth crime control in Western societies. Ultimately, the
article addresses to what extent and how international children’s rights standards can effectively protect
child suspects and accused from excessive, unlawful and arbitrary pre-trial detention.
Keywords
bail, children’s rights, deprivation of liberty, juvenile court, juvenile justice, pre-trial detention, remand,
youth court, youth justice
Introduction
Based on data collected by the Independent Expert leading the UN Global Study on
Children Deprived of Liberty (Nowak, 2019), it is estimated that on any given day between
160,000 and 250,000 children1 are deprived of their liberty in detention facilities and pris-
ons around the world, because they allegedly committed a criminal offence. Annually, at
least 410,000 children who are perceived to be in conflict with the law are deprived of
their liberty in such facilities (UN Doc. A/74/136, para. 40; Nowak, 2019).2 The vast
majority of these detained children are not yet convicted, but are awaiting trial in pre-trial
detention. According to recent estimates, child pre-trial detainees make up for roughly
two-thirds of the total number of children deprived of liberty in the administration of
Corresponding author:
Yannick van den Brink, Universiteit Leiden, Postbus 9520, 2300 RA Leiden, the Netherlands.
Email: y.n.van.den.brink@law.leidenuniv.nl
884658YJJ0010.1177/1473225419884658Youth JusticeVan den Brink
research-article2019
Original Article
Van den Brink 239
youth justice and criminal justice across the globe. Worldwide, an estimated 297,200 chil-
dren spent time in pre-trial detention in 2018 (Nowak, 2019).
While the almost universally ratified Convention on the Rights of the Child (CRC,
1989) requires states to ensure that pre-trial detention shall be used only as a measure of
last resort, in exceptional circumstances, and for the shortest appropriate period of time,
the UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or
punishment points out that ‘in reality, detention is often used as the first response to per-
ceived problems’ (UN Doc. A/HRC/28/68, paras. 39–41). According to multiple UN
agencies, non-governmental organizations and scholars, such high reliance on pre-trial
detention in many youth justice systems across the globe is reason for concern; not only
because this is not in line with the states’ legal obligations under the CRC, but also because
of the potentially negative impact of pre-trial detention on the lives of children (c.f.
Defence for Children International, 2010; Liefaard, 2008; UN CRC Committee, 2019).
Research shows that pre-trial detention causes feelings of stress, fear and insecurity,
places youth outside their communities (including school) and family environments,
might expose them to violence inside the institution and can have detrimental conse-
quences for their well-being and future life chances (Freeman, 2008; Freeman and
Seymour, 2010; Goldson, 2009; Van den Brink and Lubow, 2019). Despite these con-
cerns, very little research has been done on the underlying explanations of the high reli-
ance on pre-trial detention of children.
This article aims to explore the underlying explanations of the high reliance on pre-trial
detention3 of children across contemporary Western4 youth justice systems, with a particu-
lar focus on the Netherlands. Based on a case study of pre-trial detention decision-making
in the Dutch youth justice system, combined with a review of international empirical litera-
ture on pre-trial detention decision-making for youth, this article aims to identify patterns
in the judicial decision-making process and in the functions of pre-trial detention in the
administration of youth justice. The patterns and functions of pre-trial detention will be
used to identify possible driving forces underlying the use of pre-trial detention of children
and to reflect on the penological underpinnings of youth justice and youth crime control –
that is the ‘penal cultures’5 – in contemporary Western societies and their compatibility
with international children’s rights standards. Ultimately, the article aims to address the
central question to what extent, and if so how, international children’s rights standards have
the potential of effectively protecting child suspects from unlawful and arbitrary pre-trial
detention.
The central research question shall be answered through a combination of normative,
empirical and penological analyses. The normative international children’s rights frame-
work of this article will be established in the next section, which is followed by a section
that presents empirical research findings on the use of pre-trial detention of children in
practice, providing insights in pre-trial detention decision-making processes ‘in action’.
Subsequently, two driving forces behind these pre-trial detention decision-making prac-
tices will be explored by scrutinizing the penological underpinnings of youth justice and
youth crime control in Western societies, followed by a thorough reflection on this arti-
cle’s central research question and some concluding remarks.
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