Separation of adults and juveniles in detention

Introduction

20.100 Generally young offenders under 18 are detained in a juvenile detention centre. However, provisions governing this issue vary across jurisdictions. In some jurisdictions, detainees may remain in these centres past age 18 and, in some, to age 21. In other jurisdictions, young people in detention can be transferred to an adult prison before they reach 18.^[230] Procedures relating to transfers to adult prisons are largely unregulated. Separation of adults from juveniles is also of serious concern in this context. The Design Guidelines provide that detainees should be categorised for accommodation and programs according to their age.^[231] However, they do not specifically provide for the separation of juveniles from adults. The QOC Standards also do not deal with this issue. National standards governing these areas are therefore required.

Separation from adults: international standards

20.101 Article 37(c) of CROC requires that

[e]very child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person…In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child’s best interest not to do so…

Australia has made a reservation to article 37(c). That reservation states

Australia accepts the general principles of Article 37. In relation to the second sentence of paragraph (c), the obligation to separate children from adults in prison is accepted only to the extent that such imprisonment is considered by the responsible authorities to be feasible and consistent with the obligation that children be able to maintain contact with their families, having regard to the geography and demography of Australia. Australia, therefore, ratifies the Convention to the extent that it is unable to comply with the obligation imposed by Article 37(c).^[232]

20.102 Australia’s size and population distribution create significant difficulties in simultaneously ensuring separation of juvenile and adult offenders and enabling young offenders to maintain contact with their families. A number of States and Territories, in particular, Victoria and Western Australia emphasise that the small number of children in adult prisons means that separation from adult prisoners would amount to solitary confinement.^[233] This difficulty is real. It strengthens the case for alternative sentencing options such as recognisance orders and community service orders. However, the reservation is unnecessary. Separation is not required where it is in the child’s best interests not to be separated. In its own terms and generally, article 37(c) is subject to the paramountcy of the best interests of the child. If the child’s best interests require separation then he or she should be moved to a separate place of detention. If the child’s best interests require greater priority for family contact than for separation then he or she should be detained close to home, even if detention is in a facility shared with adults, provided that the child’s safety is assured. Recommendation 229 proposes minimum standards for remand of children in rural and remote areas. The implementation of that recommendation will assist to ensure that the standards for young people in that context are suitable.

Separation from adults in juvenile detention centres and prisons

20.103 Children have particular needs that are very different from those of adult offenders. For instance, they tend to have a reduced fear of danger and display ‘acting out’ behaviours. They may have volatile behavioural patterns and emotional states, self-harming behaviour, different perceptions of time and shorter concentration spans.^[234] They are also more vulnerable to contamination from criminal influences they encounter.^[235] Their different behavioural and emotional characteristics require different approaches than those for adult offenders. This has been recognised in other reports.^[236]

20.104 The differing maturity levels and needs of children has been recognised to some extent by States and Territories. Some jurisdictions recognise that the welfare of young offenders over 18 is best served by keeping them at juvenile detention centres, where possible. For instance, in Victoria and NSW it is possible for young offenders up to 21 years of age to remain in juvenile detention centres.^[237] There is provision for separation of children and young adults in some of these centres. For instance, in Parkville Detention Centre in Victoria there is provision for separation of the young female detainees according to age categories. However, commentators have noted that low numbers and staff demands work against separation in practice.^[238]

20.105 Separating juveniles from adult offenders is important in preventing criminalisation of children through contact with adult offenders. It recognises that children have developmental needs that require different programs and services than those for adults. It protects the well-being and safety of children. In recognition of this, separate units in juvenile detention centres should be established for young adults assessed as suitable for the programs.

Transfers to adult prisons

20.106 Children usually serve their sentence in juvenile detention centres until they reach 18. However, young offenders under 18 can be transferred to prison if their behaviour is deemed to warrant such action^[239] or, in the Northern Territory, once a young person sentenced as a ‘repeat offender’ reaches 17.^[240] Some juris-dictions, such as Queensland, provide that those aged 17 can be transferred to an adult prison in certain circumstances.^[241] Others, such as NSW, Victoria and Western Australia, provide that children as young as 16 can be placed in an adult prison in certain circumstances.^[242]

20.107 Jurisdictions differ as to what action will justify transfer to an adult prison. Children are usually transferred if they commit a detention offence, that is an assault, escape or attempted escape, or where it is deemed that they cannot be controlled in a detention centre.^[243] However, in some jurisdictions, children can be transferred for less serious reasons, for instance, if they have persistently incited others in the centre to cause a disturbance.^[244] Children over a certain age may also request to be transferred to prison.^[245] There are currently 58 children serving their sentences in adult prisons.^[246]

20.108 A number of jurisdictions provide that child and adult offenders should be separated in adult prisons.^[247] Others provide for separation of different classes of prisoners, but not for separation of children and adults.^[248] Evidence to the Inquiry from a variety of sources, including legal practitioners, youth workers and young people themselves, indicates that placement of children with adult prisoners is quite a widespread practice.

It is not uncommon for children to be detained side by side with hardened adult criminals.^[249]

The Inquiry heard that children on remand are often placed in police cells alongside adults or placed in adult prisons.^[250] The Inquiry was also told that young people with a mental illness are placed alongside adults in some psychiatric institutions.^[251] One particularly serious problem was the detention of children in watch houses where they are not separated from adults and are exposed to sexual taunts and harassment and dehumanising treatment.^[252]

20.109 In the Northern Territory, correctional officers confirmed that there is no separate accommodation for young people transferred to prison. Furthermore, they confirmed that there are no specific education programs in prisons to cater for the particular needs of young people. The correctional officers noted that the new prison in Alice Springs has facilities to enable young offenders to be accommodated separately from older prisoners, but that there is no requirement that they be kept separate.^[253]

20.110 The absence of separate juvenile units in adult prisons presents serious problems. Evidence presented to the Inquiry from a young person who had been in detention indicated that use of the protection unit in prison to separate children from adults can stigmatise young offenders.^[254] One submission pointed out that, in areas where there are no juvenile facilities in adult prisons, such as Alice Springs, children are held on remand in isolation cells. There have been approximately 26 children detained at the prison at Alice Springs this year, one of whom was a 12 year old girl. Although children are supposed to be separated from adult offenders, the submission stated that this is enforced inconsistently.^[255]

20.111 The Inquiry has serious concerns about the placement of 16 and 17 year old children in adult prisons. CROC defines children as persons under the age of 18 years. It also stresses the importance of young people who come into conflict with the law being afforded treatment appropriate to their age and legal status.

20.112 Placing a young offender in an adult prison does little to advance the rehabilitative aims of juvenile justice, particularly as contact with adult offenders has a tendency to further criminalise young offenders.^[256] This is particularly so if there are not adequate facilities to accommodate and deal with young people separately within the adult prison and appropriate educational and other programs necessary for that age group. The Inquiry would regard as preferable a system whereby young offenders could remain in the juvenile detention centre where possible. Implementation of Recommendation 272 would advance this result.

20.113 There are also no agreed national standards that provide natural justice mechanisms for young people in relation to the decision to transfer. In NSW, an order to place a child in an adult prison must be reviewed at least once a month by the relevant minister and there is provision for the child to apply to court to have the order varied or revoked.^[257] The NSW legislation also provides that the child is entitled to be heard and to be legally represented in the proceedings. However, in other jurisdictions, such as Victoria and South Australia, the decision is made by a parole board or court, without giving the young person the opportunity to be heard or the right of review.^[258]

20.114 The Inquiry heard evidence from one boy who had been transferred to an adult prison when he was 16 after he had absconded from a juvenile detention centre. He was transferred as a result of ministerial approval and there was no opportunity for review or appeal from that decision. That particular boy spent two and a half years in the adult system.^[259] Given that children are not generally separated from adults in prison, the implications for young offenders of a transfer to prison is serious. Most jurisdictions do not oblige decision-makers to consider whether suitable accommodation is available in prison before approving a transfer.^[260] The provision of natural justice processes in relation to transfer to an adult prison is essential.^[261]