Advocacy

COVID-19 and street connected children’s rights: Public spaces and orders to self-isolate

Published 03/24/2020 By Jess Clark

Introduction

Since the World Health Organisation (WHO) declared COVID-19 a global pandemic, many countries have adopted restrictive measures including orders to self-isolate at home, curfews, quarantines and lockdowns, and some have even officially proclaimed a state of emergency in their efforts to control transmission of the virus.

So, what does this mean for your work, and for the children you work with?  It can be difficult to know how to advocate for their protection in the face of a virus which is easily transmissible, in a context of fear, but with real and genuine public health threats. We will try to answer some of these questions for you – and if you need specific guidance or advice, we will try to provide that for you as well.  We would like to hear from you about what is useful, what is not, and any specific themes or questions you would like us to cover in our next note. We aim to send one out every few days.

This pandemic is moving quickly, and the political and public health measures being put in place are also moving quickly. In putting out this note, we risk that it may be out of date no faster than it takes time to read it. However, we will take the risk that these notes will rapidly need updating, and CSC will publish regularly on topics that become important to you, our network. We will update you regularly by collecting information as it becomes available, and attempting to write them in a format that helps you, our network members, decide what steps to take to best protect the children you work with and your staff.

Also, important, we would like to help you decide how, when and on what to engage with local and national authorities to ensure public health protection for children in street situations, and to mitigate measures taken by governments which renders street children even more vulnerable – or in fact is unlawful. This is, in our view, urgent, and if you can, we’d like you to start as soon as you’ve finished reading.

Are quarantines, lockdowns, and orders to self- isolate legal?

Yes, when they are required for public health reasons.  In terms of human rights law, restricting public movement and assembly in a global health pandemic is permissible. Public health measures are needed to stem the spread of coronavirus. Governments are both bound and permitted to put in place reasonable measures that are intended to contain the spread of this virus, which has proved especially dangerous for those with underlying health conditions and weakened immune systems.

But this power is not unlimited, and nor can street children or homeless youth be ignored by governments in their public health fight to contain the virus. These measures must be proportionate, and not have a discriminatory effect on the most vulnerable. In fact, public health measures should be designed in order to protect the most vulnerable.  Defining who is most vulnerable can become a political issue – is it seniors? Those with auto-immune conditions? Those without income or a home? Those without parental protection? Those in prison or detention who are unable to protect themselves?

From CSC’s point of view, a network set up to protect street-connected children and homeless youth, it is important that we impress upon authorities that the public health measures they adopt must proactively protect street-connected children and homeless youth, rather than ignore or forget about them, punish them or render them even more marginalized and unable to access health care, or to distance themselves from others who may carry the virus.

Both Human Rights Watch and Amnesty International have published position papers last week highlighting how human rights can be affected by public health measures. Both are a good read – and are available online:

  • Amnesty International, Responses to COVID-19 and States’ Human Rights Obligations: Preliminary observations, 12 March 2020. Available in English and Spanish.
  • Human Rights Watch, Human Rights Dimensions of COVID-19 Response, 19 March 2020. Available in English and French.

Both reports contain recommendations to governments which you can adopt, adjust or use in the way you find most appropriate for the country you are in, and the particular scenario that your country is in this week.

The main message that we all immediately must impress upon authorities is that any and all public health measures must protect the most vulnerable. Street-connected children are particularly vulnerable to being unable to comply with instructions to self-isolate, quarantines, curfews and access to sanitary facilities such as soap and water. While governments do have the duty to protect public health by restricting movements in times of public health emergencies, they must at the same time identify how they will provide for those who are unable to comply as they live, work and sleep in public spaces.  Governments must provide populations, including street children and homeless youth, with the means to comply, rather than just issuing orders to self-isolate or quarantine.

Why are street-connected children particularly vulnerable during the COVID-19 pandemic, and measures that restrict movement?

COVID-19 is easily transmissible. Washing with soap and water regularly, and social distancing – i.e. keeping at least 2 metre apart from others, are the two main ways to reduce both the chances of transmitting the virus and of catching it. Governments in their haste to contain a spiralling number of cases may decide to enforce social distancing with curfews, quarantines and stay at home orders. All of these require a home to be able to retreat to. For those who sleep in a shelter or hostel, these may become over-crowded, and risk becoming even more unsanitary or force people to live in close proximity with others – even more than on the street. If children move from one area to another because of quarantines and curfews, they become even more vulnerable as they may find themselves needing to hide even more and unable to access basic services.

We must remind governments that in the context of the COVID-19 pandemic, those who live or work on the street are among the most exposed to the risk of contagion due to their inability to self-isolate (particularly in crowded shelters) and often lack access to water and sanitation. Remind your governments that this does not mean that street-connected children should be forcibly quarantined against their will – but rather be included in plans to offer shelter or isolation possibilities that the government may be considering for other vulnerable groups.

It is a fine line to draw between highlighting street-connected children’s vulnerability and be seen to be giving the green light for governments to forcibly quarantine or detain these children. We must highlight governments’ responsibility to offer voluntary ways and means for them to be able to protect themselves with dignity and respect – and use as examples any measures the government may be taking to protect other vulnerable groups like the elderly or those with underlying health conditions.

As fear in this pandemic grows, children in street situations and homeless youth may become further targets of social stigmatisation. Governments will need to ensure that even in times of public health emergencies, they monitor the conduct of police to prevent violations by police and detention officers, and that health officials are not discriminatory in their provision of essential health services. Members of the community who target street-connected children or homeless youth in their fear of the virus are still responsible for their crimes, even in times of a state of emergency. Governments are still responsible for ensuring that those who discriminate against, or commit crimes against children in street situations or homeless youth, are brought before the law and held to account for their actions.

In times of a pandemic, governments may lawfully impose restrictions on public movement and presence in public spaces, including for street-connected children, to prevent or contain the spread of the virus. While this is lawful, we know this comes at a higher cost to street-connected children and homeless youth than many other individuals.  When States impose lockdowns, only allowing individuals to be outside in cases of essential work, or to buy food or medication, this is often accompanied by criminal sanctions. As a result, street-connected children are at higher risk of being criminalised simply for being on the streets, even if they have nowhere else to go.

Sometimes this criminalisation may be intentional as a government may use the pandemic as a reason to “clean up the streets”.  However, governments in their haste to contain the virus may have not thought of how to ensure that street-connected children and homeless youth are not criminalised by their status of not having anywhere to go in times of mandatory curfews, quarantines and lock downs.

It can be helpful to remind governments that to impose criminal sanctions on those without a home for failing to self-isolate could in fact lead to further public health implications if this means that detention centres become overcrowded with those who cannot obey the public health measures.

Are governments allowed to restrict human rights during a state of emergency?

The short answer is yes – but only for some rights and only for a short amount of time – and never ever in secret.

As we all know, human rights, including children’s human rights, belong to every individual, simply by being human. They are not provided by governments, and cannot be taken away by governments. Governments are required under international law to respect, protect and fulfil human rights at all times. Even in a state of emergency, which as we have seen over the past week several governments have declared as a result of the COVID-19 pandemic, governments have obligations to uphold human rights and freedoms.

Certain rights and freedoms are considered absolute and cannot ever be restricted, even in a public emergency, including in response to the COVID-19 pandemic. These rights and freedoms are:

  • the right to life
  • freedom from torture and cruel, inhuman or degrading treatment
  • freedom from slavery, servitude and compulsory labour
  • the protection from conviction for a criminal offence for any act or omission which did not constitute a criminal offence at the time it was committed.

Governments must respect and protect these rights and freedoms at all time, and cannot impose any limitations on these rights in any circumstance – even a pandemic.

  • No government may tell you that they now have the right to treat street-connected children in a way that amounts to torture or to cruel, inhuman or degrading treatment, for example as a punishment for failing to self-isolate.
  • No government may force street-connected children against their will into labour, even if they say it’s for the public good.
  • No government may arrest a child for a crime that was not illegal when he or she committed whatever act it was.  As an example, a child may not be detained for failing to quarantine if it was not legally required on the day they were arrested (but came into force at a later time).
  • It goes without saying that governments are never entitled to kill street-connected children.

If you come across cases of any of the above, these are very serious and unlawful at any time, even in an official state of emergency. If you encounter a government official telling you otherwise, please contact us for advice on how to respond.

Other rights, like the right to peaceful assembly (gathering in public spaces), can be restricted during an officially proclaimed state of emergency, including on grounds of protecting public health. When rights are restricted, measures should always be lawful and respect the principles of necessity, proportionality and non-discrimination. This means that limiting street-connected children’s rights should not exceed what is strictly required by the situation and any form of discrimination in adopting measures is prohibited.

If you encounter measures which you believe are discriminatory to street-connected children or homeless youth, or are disproportionate to the crisis, please contact us for advice on how to respond.

What does this mean for street-connected children’s right to be in public spaces?

As network members working with children in street situations, we know that children have just as much right as anyone to be in a public space. This has also been recognised at the UN level. The UNCG 21 recognises that the relationship of street-connected children with public spaces is special and usually forced by necessity (e.g. homelessness).

Therefore, when imposing restrictions on the right to assemble and associate as a means to contain the transmission of COVID-19, governments must ensure that restrictive measures are necessary, proportionate and not discriminatory to street-connected children.

Measures must be necessary, which means in the context of limiting rights to protect public health, measures must specifically aim at preventing the spread of the disease or providing healthcare services to people affected. Governments cannot use COVID-19 as an excuse to prevent freedom of association if it’s not for public health reasons.

Measures must be proportionate, which means the least restrictive alternative must be adopted where several types of limitations are available. In the current pandemic it is difficult to say what the least restrictive necessary measures are, as governments with weaker health care systems may need to take far-stretching measures to limit the burden on the health care system as much as possible.

Measures should not be discriminatory. This is probably the most important part for our work. These measures must apply to all populations, not just some. Governments are not permitted to stop homeless youth and street children from being in public spaces under the guise of COVID-19, while allowing others to congregate.  Public health requires these measures to apply to everyone equally – and human rights law does too.

Crucially for our work criminalising children living on the street for being outside during a lockdown (although they have nowhere else to go) has a discriminatory effect or impact as they do not have the means to comply with the order. The lockdown itself may be justified, depending on the situation, but then the government should ensure that children are offered a safe and secure place where they can go. Governments should ensure that street-connected children and homeless youth have the means to comply when they issue such orders.

If restrictions on public spaces are inevitable, which is happening now globally in the COVID-19 pandemic, then the States must provide to street children equal access to shelters or other adequate, alternative housing.

If governments do provide alternative housing or shelters, these need to allow for adequate distancing and provide sanitation and handwashing facilities among other essential needs.

Moreover, measures should be of limited duration and subject to review. If a government decides to ban public gatherings for a full year or even without an end date without any possibility to review the measure, this is not allowed under international law.

Finally, measures must be proclaimed by law, which means that if a government wants to introduce and enforce measures that limit human rights they need to pass a law that sets out the specific measures and its time frame. Governments are therefore not allowed to criminalise and arrest individuals for breaching newly imposed restrictive measures if such breaches have not been formally established as a crime in the law. This is the case regardless of whether a government has declared a state of emergency or not. The government also has an obligation to make the content of this law accessible to everyone.

What recommendations can you make to governments in times of states of emergencies and emergency public health measures due to COVID-19?

The following recommendations are examples of what you can ask your government to do for street-connected children during this COVID-19 pandemic:

  • Recognize that a government may be overwhelmed with how to control COVID-19.  We recommend that as a first step, you focus on encouraging your government to provide additional shelters and other alternative accommodation for homeless children and youth, and guarantee access to water and sanitation, healthcare, food and other essential services.  Remind them that this approach has the best chance for a positive public health outcome.
  • Emphasise to your governments that they have an obligation to protect the vulnerable, such as street-connected children, in times of a global pandemic.
  • Urge your government not to criminalise street-connected children and youth for being on the street and breaking restrictions imposed on movement, especially if they do not have an alternative to public spaces. This is discriminatory and can result in further public health implications due to overcrowding in detention centres.
  • If your government is criminalising or arresting street-connected children or homeless youth for being on the streets, check if a law has been passed that explicitly allows your government to arrest individuals not complying with self-isolation and curfew measures. If they have not, they are violating individuals’ rights, and you can hold them to account.
  • Urge your government to include street-connected children in plans to offer shelter or isolation possibilities that the government is considering for other vulnerable groups, and refrain from forcibly quarantining street-connected children.
  • If your government is not responsive to the public health argument of protecting street children and homeless youth, remind them that there are rights which are non-derogable. The right to life and freedom from torture, freedom from slavery and freedom from retroactive penal prosecution is always to be protected, even in a state of emergency.
  • Remind your government that restrictions on the street-connected children’s right to be in public spaces must be necessary, proportionate, non-discriminatory and time limited.
  • Ensure that in times of state of emergency, the government continues monitoring the conduct of police to prevent and act on human rights violations by police and detention officers against street children and homeless youth.

Other papers will be prepared to support CSC’s network members and other interested organisations and individuals. Please get in touch with us at advocacy@streetchildren.org to discuss topics relevant to your work on which you would like to see a similar paper. Please do not hesitate to use the above email address if you need individualised support to analyse laws or measures adopted by the Government in your country in relation to responses to COVID-19 which can or already have an impact on street-connected children’s rights.