Children in Child-Care Institutions: The adverse impact of marginalization and institutionalization on children’s mental health
over-representation in the juvenile justice system
Across the world, marginalized populations including children are systematically over-represented in the legal system. In India, marginalized communities account for a disproportionate percentage of the population inside adult prisons., Dalit, ST and OBC individuals comprise 70% of adult prisoners, while Muslims comprise another 17%, both figures being higher than their percentages in the general population. The same holds true for the juvenile justice system in India. In Counsel to Secure Justice’s (CSJ's) experience of working in Child Care Institutions in Delhi and Rajasthan, a high proportion of the children are found to be Muslim and Dalit.
a biased legal system
This over-representation is attributable to structural risk factors: rampant inequalities; and a retributive state that is frequently biased against the marginalized, as the significantly higher rates of arrest, illegal detentions and coerced false confessions show – as well as more frequent denial of bail due to a lack of the resources needed for legal representation and bail bonds.
marginalization as a causal factor
Not only are marginalized children likelier to enter the legal system due to its inherent biases, their marginalization also predisposes them to mental health difficulties which may cause behaviours that bring them within the law’s purview. Having to cope with high levels of discrimination, microaggressions, feelings of insignificance and isolation, and being deprived of civil, economic, social and cultural rights, are all factors in mental distress. Being resource-poor, marginalized populations typically lack access to mental health care and support, which further compounds their struggles. Studies elsewhere show that up to 80% of youth in custody have mental health difficulties. What is seen as an individual’s wrongdoing may often be a culmination of mental health struggles caused by marginalization.
institutionalization further impacts mental health
Given the isolation and violence they experience, often accompanied by a lack of access to education and health care, many children in institutions develop long-term mental health difficulties including depression, anxiety, and suicidal ideation. Those already marginalized by virtue of their socio-economic class, lack of access to education, caste, religion or gender tend to be the most vulnerable – often at the receiving end of further violence within the institution, despite protective legal principles and safeguards. 14-year-old Nagesh, one such boy with individual and social vulnerabilities, was subjected to repeated violence by the staff and older children; he began experiencing severe suicidal ideation, culminating in a suicide attempt. The marginalized tend to be treated as “lesser beings” within institutions, including being subject to caste- and religion-based slurs, often denied the freedom to practice their own faiths or forced to participate in majority religious practices, as well as having to perform caste-based labour – explicitly allowed in many adult prisons until very recently. CSJ’s experience shows that children from privileged backgrounds are offered several relaxations in terms of labour (cleaning, sweeping, cooking) inside institutions, while marginalized children may be denied access even to basic facilities. 12-year-old Bipin, who came from an economically deprived background and had health difficulties, did not receive prompt care while in the institution, which caused him aggravated anxiety. Such identity-based discrimination is bound to intensify mental health challenges for individuals. Family members often do not have the resources to visit these marginalized, institutionalized children, which only deepens the latter’s sense of isolation. For most children, mental health difficulties that arise or become exacerbated while in the institution continue to persist post-release. CSJ has worked with many children who had continued to experience extreme mental anguish, including the loss of motivation, everyday coping troubles, incessant crying, fear, loneliness, and sadness. This continuing, adverse impact on mental health has a ripple effect: an increased likelihood of having to return to a custodial institution; dropping out of school; being prone to illnesses; being subjected to physical and sexual abuse, and dying by suicide.
mitigating the harm caused by institutionalization
While broader social and structural change towards a more equitable society is the most essential, including reforms in the legal system that dismantle biases towards the marginalized, other interventions can point the way.
reducing reliance on institutionalization for children in conflict with the law can be a core strategy for decreasing harm. Indian law, as well as various international instruments, endorse the principle of institutionalization as a measure of last resort, i.e., children should be placed in institutions only if doing so is in the best interests of the child, and when no other solution is viable., For instance, when a child is in clear physical danger, or when there is no family member to ensure they stop engaging in harmful behaviours. However, CSJ has witnessed numerous children being sent to institutions for extended periods, and denied bail, contrary to their best interests. Stronger implementation of the “last resort” principle would be an effective first step.
reimagining and broadening our perceptions of accountability would also help to go beyond the institutionalization option. The restorative justice process is an example of such a reimagining. Diversionary restorative justice programs (that “divert” the child out of the legal system) are designed to provide space for the child to be accountable, while counteracting the adverse effects of institutionalization, and, in best practice, also addressing the vulnerabilities arising from marginalization.
interventions within institutions: restorative circles
It is imperative, simultaneously, to introduce reforms within institutions that could help minimize the adverse mental health impact for the children who must, of necessity, stay there. One such intervention takes the form of restorative talking circles – non-hierarchical, non-judgmental spaces aimed at building relationships, talking about adverse experiences. These nurturing spaces have helped children to recognize the ways in which they are affected by marginalization, and practice coping through the use of specific, empowering tools.
The restorative circle creates a safe space for children to cope with the adverse effects of institutionalization (including isolation and shame) by talking about their difficulties and building mutual support. These circles also help to address violence within the institution. While distinct from other therapeutic spaces that also play a pivotal role for children in institutions, restorative circles address a fundamental need – social support within the institution, which plays its own protective role with regard to mental health. In these circles, CSJ creates space to unpack broader structural harm, including harm arising from oppression and marginalization.
Further, for children in institutions, facilitated and structured conversations with their family/community of care at the time of release can help mobilize plans to support the child and meet their needs as best as possible, while also seeking to address their initial vulnerabilities by bringing in relevant service providers – for instance, assisting families to access mental health support. These conversations not only help families understand the impact of the child’s stay in the institution; they help children to reintegrate into their everyday lives smoothly.
Institutionalization is a structural determinant of adverse mental health, which is often exacerbated by the already high levels of vulnerability of many who come into the institution. Decreasing reliance on institutionalization through exploring alternatives, along with sustained and institution-wide collective interventions of the kind outlined above, can help to mitigate adverse effects, while also responding to the harm caused by marginalization.
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(6) Kapur, Devesh. "By Mostly Jailing Dalits, Muslims & Tribals, India is Making the Same Mistakes as the US". The Print, 5 Jan 2018, theprint.in/opinion/a-tale-of-indian-and-american-prisoners/26637/. Accessed 10 May 2021.
(7) Counsel to Secure Justice (CSJ) is a registered non-profit organization based in New Delhi, India. In April 2012, CSJ began operations in Delhi, India in response to high levels of child sexual abuse. CSJ has provided direct legal and psychosocial support to more than 220 children during criminal proceedings in Delhi trial courts, besides working with children in conflict with the law, including those in Child-Care Institutions, Observation Homes, and Places of Safety.
(8) The JJ Act defines a Child Care Institution as “children home, open shelter, place of safety, specialized adoption agency and a fit facility recognized for providing care and protection to children, who require such services.” Observation Homes and Places of Safety house children in conflict with the law, the former while the inquiry is pending, and the latter at any stage, including post the final order.
(9) CSJ has worked in eight Observation Homes and Places of Safety housing children in conflict with the law.
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(22) Shantha, Sukanya. "From Segregation to Labour, Manu’s Caste Law Governs The Indian Prison System". The Wire, 10 Dec. 2020, thewire.in/caste/india-prisons-caste-labour-segregation. Accessed May 2021.
(23) Shantha, Sukanya. "From Segregation to Labour, Manu’s Caste Law Governs The Indian Prison System". The Wire, 10 Dec. 2020, thewire.in/caste/india-prisons-caste-labour-segregation. Accessed May 2021.
(25) Brown, Nancy T. “Restorative Justice Juvenile Diversion and Recidivism: A Quantitative Assessment”. 2018. Capella University, PhD Dissertation. ProQuest, pqdtopen.proquest.com/pubnum/13425654.html?FMT=AI . Accessed May 2021.
(26) Countywide Criminal Justice Coordination Committee Youth Diversion Subcommittee & the Los Angeles County Chief Executive Office. “A Roadmap for Advancing Youth Diversion In Los Angeles County”. Los Angeles, 2017. Accessed 11 May 2021.
(27) Section 3(xii) of the Juvenile Justice Act, 2015 (JJ Act)
(28) For instance, ‘Arrest, detention or imprisonment of a child shall be in conformity with law and shall be used only as a measure of last resort and for the shortest appropriate period of time’ –Art, 37(b), United Nations Convention on the Rights of the Child (UNCRC).
(29) The JJ Act specifies that bail cannot be denied based on the type of offence; however, in practice, children are often denied bail on the basis of the offence.
(30) The principle of institutionalization as a measure of last resort can be better implemented through “speaking orders”, where Magistrates who send children to institutions compulsorily specify why alternative orders prescribed are not suitable. (Manoharan, Arlene. "General Principles Under JJ Act, 2015". 2018.; Section 18 of the JJ Act) Magistrates can also ensure that bail is given promptly to those who are in Observation Homes, and explore early release from the Place of Safety for children in whose cases the inquiry is complete). (Section 97, JJ Act 2015 and Rule 82, JJ Rules 2016)
(31) Development Services Group Washington, D.C.: Office of Juvenile Justice and Delinquency Prevention. “Diversion from Formal Juvenile Court Processing” 2017, www.ojjdp.gov/mpg/litreviews/Diversion_Programs.pdf. Accessed 11 May 2021.
(32) CSJ has been holding circles in Child-Care Institutions since 2018. "Circles". International Institute for Restorative Practices, 2021, https://www.iirp.edu/defining-restorative/5-2-circles.
(33) Counsel to Secure Justice. Bonds of Hope. 2020, csjindia.org/wp-content/uploads/2020/12/UNICEF-Study-April-2020_Final-1.pdf. Accessed 11 May 2021.
(34) Counsel to Secure Justice. Bonds of Hope. 2020, csjindia.org/wp-content/uploads/2020/12/UNICEF-Study-April-2020_Final-1.pdf. Accessed 11 May 2021.
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“The marginalized tend to be treated as “lesser beings” within institutions, including being subject to caste- and religion-based slurs, often denied the freedom to practice their own faiths or forced to participate in majority religious practices, as well”