Expert Legal Opinion: Children, Detention & Solitary Confinement in Scotland

Inspiring Children’s Futures presents the expert legal opinion of Dr Kasey McCall-Smith, University of Edinburgh, on conditions of solitary confinement in youth offender institutions in Scotland.

The high number of children detained on remand in Scotland is worrying. In line with UN Convention on the Rights of the Child (UNCRC) Article 37, the European Court of Human Rights (ECtHR) has consistently outlined that detention of children prior to a conviction is a measure of last resort and, when necessary, should be used only for the shortest duration possible.[1] In December 2020, 72% of children referred to the courts in Scotland were held on remand in a youth offender institutes (YOI). The percentage of children held on remand does not align with the presumption against pre-trial detention elaborated in Scots law, ECtHR judgments or international guidance. 

While Scotland does not employ ‘solitary confinement’ of children in YOIs as a matter of policy, in practice a combination of factors result in conditions equivalent to solitary confinement. The recent results of a Pre-Inspection Survey conducted in the context of the Year of Childhood (YoC Survey) revealed troubling dimensions of the detention situation for children in prison custody in Scotland. A key finding was that the majority of the respondents were restricted to their single occupancy cells more than 22 hours per day. The Istanbul Statement on Solitary Confinement details that ‘Solitary confinement is the physical isolation of individuals who are confined to their cells for twenty-two to twenty-four hours a day.’ Similarly, Rule 43(1)(b) of the UN Mandela Rules defines solitary confinement as ‘22 hours or more a day without meaningful human contact’. The YoC Survey reveals that in terms of duration of isolation, Scottish YoIs are holding children in ‘solitary confinement’.  

When does solitary confinement rise to the level of prohibited treatment? 

Contemporary legal analysis utilises a totality of the circumstances, fact-sensitive or cumulative approach to determine the point at which solitary confinement breaches the prohibition against torture or cruel, inhuman or degrading treatment (CIDT).[2] In short, ‘[t]here no “bright line” rule, at least in the adult context, that solitary confinement lasting more than a specific period of time automatically breaches [ECHR] article 3 [the prohibition against torture].’[3] While the cumulative approach applied to the solitary confinement of adults is unsettled in terms of outcomes, the situation is not the same for children. Since the initial development of the international human rights system, the need for ‘special care and assistance’ for children has been repeatedly recognised. For this reason, UNCRC Article 37(c) provides that ‘Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age.’

Children’s rights experts, international instruments, reports and guidance continually call for states to abolish the use of solitary confinement as a form of discipline for children because it can amount to torture or cruel, inhuman or degrading treatment. The logical follow-on is that children should not experience solitary confinement as a result of apathetic or negligent detention practices. ‘Lack of staffing’ cannot absolve YOIs of the duty to protect children, including those in conflict with the law, whether on remand or serving a sentence. The YoC Survey findings strengthen arguments against detaining children in prison settings. 

You can read Dr. Kasey McCall-Smith’s expert legal opinion here.

[1] Korneykova v Ukraine, App No. 39884/05, 19 January 2012, paras 25-27 and 44; Nart v. Turkey, App No. 20817/04, 6 May 2008, paras 31 and 33; Selçuk v. Turkey, App No. 21768/02, 10 January 2006, paras 35-36.

[2] Ramirez-Sanchez v France (2006) 45 EHRR 49, para 118. 

[3] Ahmad v United Kingdom (2012) 56 EHRR 1, para 210, cited in R (on the application of AB) v Secretary of State for Justice [2021] UKSC 28, para 26.