Imagine a sixteen-year-old girl in detention without visitors for twelve months. The director of the juvenile offender’s institution has decided that she can’t have visitors because it is better for her development. But is it really better for the juvenile to have no visitors? This is the reality since April 1st, 2014, when the new Dutch penal law for adolescents came into force. Under this new law, the director of the institution will have the opportunity to refuse visitors for a period of up to twelve months. This could be anyone, including the parents of the juvenile.
The new Dutch penal law for adolescents
Anyone aged 18 years and older can be judged according to the criminal law for adults. Exceptions can be made with 16 and 17 year-old children. They can also be judged as an adult. With the application of the penal law for adolescents, young adults between the age of 18 and 23 years can be judged according to the new article 77c of the Dutch Criminal Code. This is an extension of the previous rule that imposed the limit at the age of 21. This new law claims to take the development of the juvenile into account, as well as the seriousness of the offence and the circumstances in which the offence was committed. Less important is the calendar age of the juvenile. The idea is that the new law determines what form of criminal law is applicable to the adolescent and what form is effective to make sure that this juvenile desists from crime.
Rules within the institution
The rules of the juvenile institution mention how the visit should be requested, who and how many people are allowed to come to visit and how long the visit may last. According to article 43 (3) and 41 (4) of the Dutch Youth Custodial Institutions Act (‘Beginselenwet justitiële jeugdinrichtingen’; hereafter called ‘BJJ’) a juvenile’s right to have visitors can be denied if this is necessary for the purposes of any of the following interests: maintenance of good order or the security of the facility, the prevention or detection of crime, mental or physical development of the juvenile or the implementation of the perspective plan of the juvenile. Previously, visits could be denied for a period of four weeks. With the new penal law for adolescents the director can refuse this for a maximum of twelve months. The twelve months is consistent with the current legislation applicable to adults. However, are we dealing with adults in this particular group? The reason behind this alteration is the expansion of the possibilities for refusing visits due to substance use in the institution (explanatory memorandum p.53). Reflecting on the sixteen-year-old girl: The change in the law applies in the entire judicial institution. In other words they are also applicable to that girl who can’t see any visitors, in particular her parents.
Is this alteration in accordance with internationally recognized children’s rights and standards? No, article 37(c) of the Convention on the Rights of the Child (CRC) states that in the child’s best interest the child shall have the right to maintain contact with his or her family through correspondence and visits. Exceptions may be made, though these are not defined further in this article. This right is however elaborated on in the Beijing Rules and Havana Rules. The Beijing Rules state that in the interest and wellbeing of the institutionalized juvenile, the parents or guardians shall have a right of access (see article 26.5 and 7.1 Beijing Rules). The Havana rules establish clear rules about the frequency of contact for the juvenile with their parents; every juvenile should have the right to receive regular and frequent visits. Contact and unrestricted communication with the family should be at least once a week and no less than once a month (see article 60 Havana Rules).
Twelve months no parents allowed?
The Dutch government states that the new law for adolescents applies for the group of people between the age of 16 and 23. Nevertheless, the new article 43 (3) BJJ applies for every juvenile in the institution, including minors from the age of 12. The explanatory memorandum states that the proposed scheme offers the possibility to determine a less drastic restriction of visits. It states that the prolonged refusal of visits from parents is less self-evident. However, it is not impossible! According to the legislator, limiting the contact with parents should contribute to the education and rehabilitation of the juvenile. Yet, the question remains: Is the limitation of visitors, especially refusing the juvenile visits from parents, in the best interest of the child? The answer is NO! The government has a duty to ensure that juveniles see their parents. The CRC does not deny imposing restrictions during detention. But, when a director refuses a juvenile visits for a period of twelve months this is not in accordance with the CRC. Several organizations have indicated that the new penal law for adolescents does not comply with the CRC in various areas, and on this point it is certainly true!