Memorandum submitted by The Howard League
for Penal Reform
EXECUTIVE SUMMARY
— The Howard League for Penal
Reform welcomes the Children and Young Persons Bill in so far
as it appears to be well intentioned but we are concerned that
meaningful assistance for children and young people both in and
leaving custody appears to be absent.
— We recommend that to help our
most vulnerable young people, those children who are already looked-after
on entering custody should not cease to be looked-after. They
should be entitled to all the benefits of being under section
20 of the Children Act 1989 bar the provision of accommodation
by the local authority.
— In the case of those children
who are not looked-after on entering custody, entry to custody
(or even the criminal justice system) should be an opportunity
to assist the home local authority in complying with their duties
under section 17 of the Children Act 1989 to identify the most
vulnerable children in their area. To do this, we recommend that
the Asset form (a type of assessment made by youth offending teams)
be modified to include an extra tick box indicating whether or
not the child requires a child in need assessment and that a dedicated
staff member is assigned within social services to receive YOT
referrals.
— In relation to the leaving care
framework, the Howard League for Penal Reform believes that proposals
contained in both the Care Matters Green and White Papers
allowing young people to live with foster families until the age
of 21 should be reinstated in the Bill
1. INTRODUCTION
1.1 The Howard League is the oldest penal
reform charity in the world and set up a legal department to represent
children and young adults in the penal system in 2002, following
a successful judicial review against the Home Office that forced
it to recognise that the 1989 Children Act protects children in
prison ("The Children Act case"). The Howard League
legal team has represented hundreds of children and young people
and has a track record of success in forcing improvement to prison
conditions, parole procedures and support on release.
1.2 These brief comments are sent in advance
of a fuller submission on the provision for looked-after children,
as requested in the Children, Schools and Families Committee's
announcement of 18 December 2007.
1.3 The Howard League for Penal Reform welcomes
the Children and Young Persons Bill in so far as it appears to
be well intentioned and to improve the outcomes and support for
one of the most vulnerable groups in society. We are however concerned
that many of the valid concerns and issues explored in the Care
Matters Green Paper appear to have been completely omitted from
this Bill. Informed by the work of our legal team, we believe
that it is absolutely crucial to have in place additional and
meaningful assistance for children and young people in custody,
which formally brings them within the care system where appropriate.
This appears to be absent from the Bill, however.
1.4 Our concerns revolve around two key
issues: care status of children in custody and the development
of the leaving care framework.
2. CARE STATUS
FOR CHILDREN
IN CUSTODY
2.1 As noted in the Care Matters Green
Paper at chapter 6, "research and data show that children
in care enter custody at a far higher rate than other children"
(p 82). Whatever the failings in the care system that this implies,
custody remains the worst option available. The purpose of the
care system is to safeguard children and promote their welfare.
In contrast, custody is primarily about punishment. Evidence shows
that custody is profoundly damaging for children and almost always
leads to poor outcomes, as reoffending rates of 76.2% for under
18s demonstrates.[34]
Many of the children who enter custody are among the most vulnerable
and challenging, with chaotic family backgrounds and histories
of neglect and abuse. Often, they have been ignored by the care
system itself. These children have a right to be cared for properly
and if they are not, they will continue to wreak mayhem in their
communities and place themselves and others at risk. Local authorities
must uphold their corporate parenting duties wherever appropriate.
2.2 Despite the manifest needs of this group,
the Care Matters Green Paper also notes that the majority
of children in care, ie those under section 20 of the Children
Act 1989, lose their "looked-after" status on entering
custody. As it stands, the only children with care status in custody
are:
— those under a full care order
(s31);
— those children who are classified
as "in need" under section 17 of the Children Act 1989
by the local authority in which the establishment is based, during
their time in custody; and
— or those 16 or 17-year-olds
who have spent enough time in care to be "relevant"
children.
It is worth noting here that, given the proposed
plans to increase the local authority's court fees for care proceedings
from £150 to anything up to £4,000, it is possible that
in the future there will be even more extremely vulnerable children
who are classified as "looked-after" under section 20—as
local authorities prefer not to pursue the more expensive option
of care proceedings. The Green Paper did not go so far as to suggest
that children entering custody should not lose their looked-after
status. It did, however, suggest that children entering custody
should be needs assessed and that individuals should continue
to be supported as if they were termed a child in care. Any reference
to children in custody was watered down in the Care Matters:
Time for change White Paper to merely a requirement for social
workers to visit previously looked-after children while in custody
(see p 64).
2.3 There is nothing in the Bill to ensure
that children in custody are properly looked-after. There is a
reference to the extension of the duty to visit applying to children
in custody in the explanatory notes (at p.2). Clause 13 of the
Bill, however, does not explicitly extend the duty to children
in custody. The Bill, as amended at 18th January 2008, refers
to a duty to visit "a child who was looked-after by a local
authority but who ceased to be looked-after by them as a result
of prescribed circumstances" (our bold). Notes from
the House of Lords' grand committee reveal that it is intended
that previously looked-after children in custody will fall into
such prescribed circumstances. It is also noted, however, that
the recent amendment is designed to restrict visits to children
who were previously looked-after. As set out below, this is a
matter of great concern given that many of the children who are
imprisoned have "slipped through the net" and were not
previously looked-after even though they should have been.
2.4 In any event, we believe that the visiting
requirements fail to grapple with the key issues that affect children
in custody who require care—both while in custody and on
release.
2.5 If we are truly to help our most vulnerable
young people, those children who are already looked-after on entering
custody should not cease to be looked-after and should be entitled
to all the benefits of being under section 20 of the Children
Act 1989 bar the provision of accommodation by the local authority.
This would comply with the aforementioned Children Act case taken
up by the Howard League's legal team in 2002, which confirmed
that the Act applies to children in custody subject to the
requirements of custody. Arguably, entering custody requires
as a matter of logic that a child ceases to require accommodation:
however, there is no reason why the definition of section 20 cannot
be extended to include children placed in hospital or detention
under the law. This would mean that children in custody—sometimes
the most vulnerable of all—do not become even more disadvantaged.
It must be remembered that s20 remains a form of voluntary care:
children cannot become looked-after without the consent of their
parents while under the age of 16 or without their own consent
above the age of 16. Any amendment to allow children placed in
hospital or detention under the law to be looked-after under section
20 would not impose care status on children but would entitle
them to assistance where required.
2.6 In the case of those children who are
not looked-after on entering custody, entry to custody (or even
the criminal justice system) should be an opportunity to assist
the home local authority in complying with their duties under
section 17 of the Children Act 1989 to identify the most vulnerable
children in their area. It is the experience of the Howard League's
legal team that many children in custody have not been assessed
or assisted by social services despite having asked for help or
being extremely vulnerable. When a child enters the criminal justice
system their youth offending team (YOT) worker fills in a form
called the Asset—this is an assessment of need or sorts
which details the child's background, living arrangements, health,
education and vulnerabilities: much of the information collected
will be similar to that collected in a section 17 assessment of
need and will reveal whether or not the child in fact requires
assessment by social services. YOT workers, however, have no power
to designate a child as in need under section 17 or provide that
child with the welfare assistance she or he needs. Further, it
is the experience of our legal team that many YOT workers find
that their overburdened colleagues in the relevant social services
department are not willing to accept section 17 referrals from
YOTs. A simple solution would be for the Asset form to have extra
tick box indicating whether or not the child requires a section
17 assessment and the assignation of a dedicated staff member
within social services to receive YOT referrals.
3. THE DEVELOPMENT
OF THE
LEAVING CARE
FRAMEWORK
3.1 The Care Matters Green Paper
acknowledged research, which showed that outcomes for young people
who stayed in care until the age of 21 were much better than for
those leaving care earlier (p 86). The paper proposed allowing
young people to live with foster families until the age of 21.
3.2 It is our experience that such measures
could have been extremely beneficial. In particular, young adults
leaving custody will often have come to custody from care and
attained maturity in custody. They may be keen to make a fresh
start but may often also be institutionalised. The lack of foster
placements for vulnerable young adults is not helpful in assisting
with their longer term rehabilitation. The Care Matters: Time
for Change White Paper (p 107) also makes reference to the
extension of foster placements until the age of 21 and the role
of young people in deciding when to leave care. The Bill, however,
appears to be silent on the issue.
3.3 We believe that this proposal should
be reinstated in the Bill forthwith. Explicitly providing the
option for young people to be placed in foster care would send
out a very clear message to local authorities who often refuse
to place 16-year-olds in such care.
4. CONCLUSIONS
4.1 In conclusion, the Howard League for
Penal Reform believes that entry into custody should not see looked-after
children lose that status. On the contrary, it is vital that these
vulnerable children in conflict with the law are afforded all
the support and protection available to vulnerable children in
the community. For those children entering custody who do not
have looked-after status, custody is effectively an alarm bell
ringing that should trigger an assessment of the child's vulnerabilities,
which the local authority can then act on.
4.2 We have attempted to address our key
concerns that relate to the social welfare and care needs of children
in the criminal justice system and hope that our observations
are of assistance. We have restricted our observations and comments
to areas in which we have a degree of expertise specific to our
legal work. The Howard League for Penal Reform firmly believes
that it is crucial that these points are considered by the Select
Committee and we would be very happy to provide oral evidence
if required.
February 2008
34 Hansard, House of Commons written answers,
25 October 2007. Back
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