Memorandum submitted by the Howard League for Penal Reform

 

Executive summary

 

With our experience of working with children in conflict with the law in mind, this submission from the Howard League for Penal Reform on looked after children deals in turn with three significant gaps and failings in provisions: a failure to identify children in need, a lack of formal care status for most children (and young people) in and out of custody; and a failure to look after children in care properly

 

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 addition, the way in which the YOTs and children's services interact as a whole needs to be reviewed - as there is evidence that the partnership approach is not working as was intended

 

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

 

We believe that the Committee should seek information from the government as to what incentives, if any, are in place to discourage too many children being in care, given the anecdotal evidence suggesting an extreme reluctance on the part of local authorities to place children in care. If this reluctance is purely out of financial considerations, then the interests of the child must be asserted. We recommend that local authorities should actually receive financial incentives to reduce the numbers of children in custody in their area and to look after and care for children that do remain in custody. At the very least, if the financial considerations of local authorities are having an adverse effect on the interests of the child then we would suggest central government provide a ring fenced fund of money to ensure provision of care, leaving no 'gaps in the safety net'. This could possibly be sourced from the considerable savings made from the reduction in child custody

 

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, preferably in the Children and Young Persons Bill

 

As regards young adults aged 18-20, the Committee may wish to consider that accommodation in a community home is in fact provided for by section 20 of the Children Act 1989, although unfortunately the relevant provision is rarely used by local authorities. In any event, where young adults require accommodation rather than just assistance, the discretionary duty of the local authority to provide accommodation under the Leaving Care Act 2000 where a young person's welfare requires it, should be made explicit

 

All too often the Howard League's legal team encounters corporate parents that appear to have a 'corporate' attitude, with the emphasis on resources and business management rather than the interests of the child. Failures by local authorities to look after children in care properly should be penalised, perhaps financially. Children in care will not have better outcomes until corporate parents begin to take proper responsibility

 

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. As regards the Committee's inquiry into looked after children, the views expressed in this submission are generated from our experience relating to children in conflict with the law. We believe there is an urgent need for reform through both legislative change and on a social and cultural level. Although we believe the failings we have identified must be met with real change, it is our experience that the appropriate tool is already on the statute book. If properly implemented, the Children Act 1989 - as amended in its current form - would provide a decent level of care and support to a great many troubled children.

 

1.3. With the Children Act 1989 in mind, this submission deals in turn with three significant gaps and failings in provision: a failure to identify children in need, a lack of formal care status for most children (and young people) in and out of custody; and a failure to look after children in care properly.

 

2. Failure to identify children in need

 

2.1. Many of the children who enter custody are among the most vulnerable and challenging, with chaotic family backgrounds and histories of neglect and abuse. As noted in a report initially produced for the Youth Justice Board, among children held in custody "there is a high prevalence of children who have suffered serious abuse or maltreatment prior to their admission to custody. This may be of the order (in the case of the most serious offenders) of several times the rate of abuse of children in the general population."[1]

 

2.2. While it is possible to measure and raise concerns about the high proportion of children who go from care to custody, the number who pass straight to custody without any assistance from the care system is by virtue of its nature unquantifiable. The Howard League's legal team hear on a daily basis from children in custody who have 'slipped through the net', those who have been homeless or abused but who have not received any help and assistance from social services - sometimes even when they have explicitly asked for it. These children have a right to be cared for properly and if they are not, they will continue to offend and place themselves and others at risk.

 

2.3. In the case of those children who are not looked after on entering custody, entry to 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.

 

2.4. The Howard League for Penal Reform currently has a case being heard by the House of Lords that provides a suitable example. At the age of 17, our female client 'M' had been ejected, homeless and without support, from the family home by her terminally ill mother who was unable to cope with her. Despite presenting herself to social services on numerous occasions, with handwritten notes from her mother requesting she be accommodated, M was never assessed as to whether she was a child who required a home and support under the provisions of the1989 Children Act. Instead of the local authority taking on its corporate parenting responsibilities and children's services handling her case, M was placed in a string of unsafe bed and breakfasts by the housing department where she lived a chaotic life and committed criminal offences. On release from custody, she and her unborn child were returned to exactly the same chaotic circumstances which had seen her jailed in the first place.[2]

 

2.5. We believe that 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. Our previous submission to the Committee on the Children and Young Persons Bill made a specific recommendation relating to the Asset assessment form used by youth offending teams (YOTs). When a child enters the criminal justice system their 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.

 

2.6. The way in which the youth offending teams and children's services interact as a whole needs to be reviewed. Since YOTs were created, the input of children's services has often diminished - the tendency being that once a child previously in contact with children services is involved in criminal activity then their case is effectively dumped on the YOTs. This is inappropriate, as while YOTs do have a welcome role in preventing offending and reoffending, the welfare needs of the child is not their primary aim. Indeed, given that YOT workers cannot designate children as 'in need' or 'looked after', it clearly disadvantages the child. Another important judgment secured by the Howard League for Penal Reform, in the case of K v Manchester[3], made clear that assessments under the Children's Act 1989 should be carried out by children's services and not YOT workers and effectively emphasised the need for proper interagency working. Currently, pressure on resources and failings in the intended culture of cooperation sees children getting less than the enhanced service that was originally envisaged - in short, a partnership approach will not work if no one takes the lead or takes responsibility where appropriate. As previously noted, YOT workers can find it difficult to make referrals to children's services. While the youth justice board is responsible for managing and monitoring YOTs, YOT workers themselves are generally employees of the local authority and may encounter difficulties by pursuing section 17 referrals in the face of children's services resistance.

 

2.7. It is worth nothing in passing that the substitution of YOTs for children's services also gives rise to what can only be described as a conflict of interest: on the one hand the remit for YOT workers is to form positive relationships with children and encourage them to lead positive, crime free lives; yet when the child does commit a crime it is the same individual YOT worker who must then write a report on the child which will influence sentencing or make decisions as to whether the child should be breached.

 

2.8. We also have a real concern that an over reliance on YOTs sees children effectively "ghettoised" away from mainstream services. If children involved in crime are only mixing with other children involved in crime, through Attendance Centre Orders or through ISSP interventions, then individuals may simply end up learning crime from each other (as they so often do in custody). It is important that children in conflict with the law are able to participate in mainstream activities provided by children's services and that the YOT can provide the staff and resources necessary to help supervise this.

 

2.9. Finally, a major consequence of the successful judicial review the Howard League took in the aforementioned 'Children Act case' was the placement of social worker posts by the YJB in the 25 young offenders institutions in England and Wales. Unfortunately, funding uncertainties for most of last year dogged these posts and it was only in January that the Department for Children, Schools and Families stated that local authorities with YOIs should fund the social worker posts from 2009-10 onwards. There remains a concern that local authorities will struggle to pick up the funding given the ever increasing numbers of children imprisoned in YOIs. This lingering uncertainty must be quashed as there has been a problem keeping the social worker placements filled, with only 10 of the 25 YOI posts actually filled in January 2008. The importance of these posts is illustrated by a report published last year by HM Chief Inspector of Prisons into Werrington YOI, which described disturbing incidents of forcible strip-searching that received widespread media coverage. Significantly, the report also found that the "departure of the social worker, because of longstanding uncertainty about the future funding of her post, had left a gap in the safeguarding team and in services for the young people at Werrington"[4]. It is also important that the social workers in these YOI placements are also assisted by guidance providing for a level of increased cooperation from local authorities, to avoid the social workers finding themselves arguing for services that children are entitled to as of right.

 

3. Lack of formal care status for most children (and young people) in and out of custody

 

3.1. Despite the manifest needs of looked after children, the Care Matters green paper noted 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 and young people with care status in custody are[5]:

 

those children 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

those children on remand in secure training centres or secure care homes

those 16 or 17 year olds who have spent enough time in care to be 'relevant' children, and

18-21 year olds who are former relevant children

 

3.2. To reiterate some points we made in our previous CYP Bill submission, 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).

 

3.3. 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 section 20 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.

 

3.4. Following on from the failure to identify many children in need, there also appears to be a reluctance to place children in need in the care system. We recognise that the decision to take a child into care is a difficult one and that the presumption is rightly that a child should live with their parents. Nonetheless, that presumption should not mean an abrogation of duty by children's services when it is clear that the care system is in some way required. It is interesting to recall the recent judgment by Mr Justice Munby in the 'Nottingham baby case'[6], which made the headlines. That case attracted a great deal of media criticism and was portrayed simplistically in some outlets as an instance of "meddling social workers", despite the fact that in reality the case was more about the legal requirement to follow the correct procedure - and the failure of the local authority to do so - rather than whether it was right or not for the baby to be taken into care in the first place. Indeed, far from local authorities being 'trigger happy' to place in children in care, it is our experience that all too often they are reluctant to do it.

 

3.5. To give another example from our legal team's work, the Howard League for Penal Reform is currently involved in a public inquiry by the prisons and probation ombudsman. Our client, 'SP', was remanded into custody at the age of 16 for offences of robbery and assault. SP has profound mental health problems including psychopathic personality disorder and traits consistent with borderline personality disorder that gave rise to disturbed behaviour and regular self harm when she was in custody. The Howard League represented SP and successfully had her moved from New Hall YOI to Rampton high security hospital after a judicial review[7]. The SP inquiry is now being conducted on the basis that SP's life threatening self harm whilst in prison service custody triggered the state's investigative obligations under Article 2 of the European Convention on Human Rights.

 

3.6. What may be of interest to the Committee is that SP had been known to her local authority's social services since the age of one. Throughout SP's childhood, her mother was sectioned under the Mental Health Act or assessed in psychiatric units at least eight times. SP was accommodated by social services in at least 28 different placements. Disturbing and violent behaviour by SP's mother included being arrested for threatening to kill her family with a knife, attacking her husband on a number of occasions with a knife or axe, and having paranoid hallucinations. She prevented SP and her sister from attending school and SP effectively dropped out of education from the age of 13. Despite the litany of neglect, abuse and ill treatment suffered by SP and recorded by social services, it took until the age of 16 before she finally became subject to a full care order. By then, a great deal of possibly irreversible damage had been done.

 

3.7. Why, in such a case of manifest need, did it take so long for SP to become subject to a full care order? We believe that the Committee should seek information from the government as to what incentives if any are in place to discourage too many children being in care, given the anecdotal evidence suggesting an extreme reluctance on the part of local authorities to place children in care. Are there key performance indicators that relate the number of children in care adversely to a local authority's overall performance? Or does the reluctance merely relate to financial considerations? If so, this situation looks set to worsen in light of the Ministry of Justice's proposed plans to increase local authority's court fees for care proceedings from 150 to anything up to 4,000. Further, several local authorities are piloting the new Public Law Outline - again, the Committee should seek evidence as to how many care proceedings have been issued since the pilots have been in place. We cannot simply rely on the spirit of the Children Act to inform working practice in a resource stretched environment. The law is drafted on the assumption that local authorities' decisions will not be predicated on budgetary concerns. It provides that children are not taken into care without either the parent or the child's consent in section 20 cases, or comprehensive court scrutiny in the instance of full care orders.

 

3.8. We recommend that local authorities should actually receive financial incentives to reduce the numbers of children in custody in their area and to look after and care for children that do remain in custody. At the very least, if the financial considerations of local authorities are having an adverse effect on the interests of the child then we would suggest central government provide a ring fenced fund of money to ensure provision of care, leaving no 'gaps in the safety net'. This could possibly be sourced from the considerable savings made from the reduction in child custody. Incarceration is costly: a secure training centre place (run by private contractors) costs 164,750, and a local authority secure children's home place costs 185,780, reflecting staffing ratios of four staff to eight youngsters. A place at a YOI run by the prison service costs 50,800, with a ratio of around four staff to 60 youngsters.[8]

 

3.9. 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. 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. As we noted in our submission on the Children and Young Persons Bill, however, the bill appears to be silent on the issue. We believe that this proposal should be reinstated 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.

 

3.10. Finally, the Committee might also consider young adults, those aged 18-20. Again, relating to our experience of representing young adults in custody, we encounter a large group of very troubled individuals with lost childhoods - a group recognised as the most hard to reach and hard to help within the secure estate, as reflected in reconviction rates of 75.3% within two years of release compared to the average of 64.7%[9]. Section 20 (5) of the Children Act actually provides for this age group and states:

 

A local authority may provide accommodation for any person who has reached the age of sixteen but is under twenty-one in any community home which takes children who have reached the age of sixteen if they consider that to do so would safeguard or promote his welfare.

 

Unfortunately, this provision appears to be very rarely used. In any event, where young adults require accommodation rather than just assistance, the discretionary duty of the local authority to provide accommodation under the Leaving Care Act 2000 where a young person's welfare requires it, should be made explicit.

 

4. Failure to look after children in care properly

 

4.1. 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[10]. 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 place themselves and others at risk. Local authorities must uphold their corporate parenting duties wherever appropriate.

 

4.2. It may help to introduce an analogy at this point. The law provides for an obvious remedy where a parent fails to care for a child properly, in the parenting order. Yet there is limited recourse in the case of a corporate parent who is failing and no obvious channel of complaint for a child who feels neglected - where does a concerned teacher go, for example? Independent reviewing officers and child advocates do not have investigative powers anything like akin to the powers of social services to investigate the home life of a child in the community. Neither the Children Act 1989 complaint process nor the office of the local government ombudsman appears to be particularly child-friendly. In the case of child advocates ('independent persons') employed to participate in the investigation of complaints under the Children Act, the very fact that the local authorities themselves appoint these individuals suggests that the 'independent person' system is not independent enough.

 

4.3. What the Howard League's legal team encounters all too often are corporate parents that appear to have a 'corporate' attitude, with the emphasis on resources and business management rather than the interests of the child. What ordinary parent would not accompany their child to court, for example? Why are so many children in custody such as SP placed in so many different placements by social services before eventually landing in prison? Why are social services allowed to break the law in terms of their level of care to 16 and 17 year olds and what example does that send to children themselves in conflict with the law? Children in care will not have better outcomes until corporate parents begin to take proper responsibility. While we are not suggesting that there should be parenting orders for local authorities who 'offend', we do believe that there needs to comparable sanctions, such as financial penalties, if children in care are being failed by their corporate parent. This may suggest a more proactive role for Ofsted.

 

4.4. As regards those vulnerable children in custody without formal case status (see 3.1 above) there is nothing in the current legislation to ensure that they are properly looked after, by which we mean there is no one performing the combined role of providing friendship and guidance, of giving pocket money, of helping the child plan for their future. We reiterate our belief that 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.

 

5. Conclusions

 

5.1. In conclusion, the Howard League for Penal Reform and the work of our legal team has brought us into direct contact with the realities of a failing care system and the cost this has in ruined lives and in perpetuating cycles of offending. We believe that if the various failings and gaps identified here are tackled by urgent reform, with both legislative and cultural change, then this could have a huge positive impact on future generations of children and the health of the nation as a whole.

 

5.2. 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



[1] p26, Past abuse suffered by children in custody: a way forward (2006) was produced by a specially commissioned taskforce which included the YJB and other government agencies, as well as leading child psychiatrists and representatives from charities such as the Childrens Society and the NSPCC. There is dispute as to why the YJB refused to publish the resultant paper and it was eventually made publicly available via the Howard League for Penal Reform's website.

[2] M's case has been considered by the House of Lords, who will deliver judgment on Wednesday 27 February 2008

[3] The Queen (on application of K) v Manchester City Council [2006] EWHC 3164 (Admin)

[4] p11, Report on an unannounced short follow-up inspection of HMYOI Werrington 16-20 April 2007, (HMCIP 2007)

[5] This is a more comprehensive list than that given in our previous CYP Bill submission

[6] G (R on the application of) v Nottingham City Council [2008] EWHC 152 (Admin)

[7] SP and Secretary of State for the Home Department [2004] EWHC 1418 (Admin)

[8] p27, Youth Offending: the delivery of community and custodial sentences, (Audit Commission 2004). These figures are per child per annum.

[9] Re-offending of adults: results from the 2004 cohort, (Home Office 2007)

[10] Hansard, House of Commons written answers, 25 October 2007