Children's Rights - Human Rights Joint Committee Contents


Memorandum submitted by the Children's Law Centre/Save the Children

INTRODUCTION

  1.  The CLC (hereafter CLC) is a children's rights NGO which uses the law to promote, protect and realise children's rights. SC (hereafter SC) is the UK's leading international children's charity, working to create a better future for children. Both organisations are founded on the principles of the UN Convention on the Rights of the Child (hereafter the UNCRC) and work to make the principles and provisions of the UNCRC a reality for all children in Northern Ireland.

  2.  We welcome this opportunity to jointly submit evidence to the Joint Committee on Human Rights in connection with its inquiry on children's rights.

FOCUS OF SUBMISSION

  3.  The CLCLC and SC made a detailed submission to the UN Committee on the Rights of the Child (hereafter the UN Committee) which addressed all eight thematic clusters of rights within the UNCRC—that submission provided a detailed analysis of a very wide range of issues from a children's rights perspective and included recommendations to the UK government as well as to the Northern Ireland Executive and the Northern Ireland Assembly.[114] For the purposes of this submission we have decided, in view of the gravity of the issues concerned, including fundamental right to life issues, to focus on a group of issues which fall broadly under the twin heading of criminalisation of children and youth justice.

JURISDICTION

  4.  As the Joint Committee will be aware responsibility for criminal justice and policing matters in Northern Ireland is in the process of being devolved. As such while responsibility for addressing many of the issues detailed below still falls within the remit of Westminster, jurisdiction is expected to transfer to Northern Ireland within the next number of months.

PRACTICAL IMPACT OF THE UK'S WITHDRAWAL OF ITS RESERVATION TO ARTICLE 37 (C) UNCRC

  5.  CLC and SC welcomed the long overdue withdrawal of this reservation. At the time of the UK examination by the UN Committee in September 2008 we highlighted the fact that both boys and girls under 18 years of age were being detained alongside adults.[115] While all young girls are now held in the Juvenile Justice Centre,[116] despite the UK's withdrawal of its reservation for the UK as a whole boys under 18 years of age in Northern Ireland continue to be held with adult males in prison service custody. This practice is in clear breach of Article 37 (c) of the UNCRC as well as other international human rights standards including the UN Standard Minimum Rules on the Administration of Juvenile Justice (Beijing Rules paragraph 26.3), the UN Committee on the Rights of the Child's General Comment No 10 on Children's Rights in Juvenile Justice (2007) (paragraph 28.c) and the Council of Europe Rules for Juvenile Offenders (2008) (paragraph 59.1). It also raises an issue of potential gender discrimination in relation to the provision of appropriate placement for detention of young males.

  6.  The UK government's statement to the UN Committee that in Northern Ireland "only in very exceptional circumstances are children ever accommodated with adults" is not true.[117] Northern Ireland Office (NIO) figures show that during 2003-05 the average population of under 18s in the Young Offenders Centre included 26 young people (68%) on remand and 12 sentenced young people (32%).[118]

  7.  Schedule 11 of the Justice (Northern Ireland) Act 2002 (enacted in August 2005) placed 17 year olds within the jurisdiction of the youth courts. However, the powers of the courts to make Juvenile Justice Centre Orders in respect of 17 year olds are restricted—only those who will not reach the age of 18 during the period of the Order; who have not received a custodial sentence within the previous two years and with regard to whom the court after considering a report by a probation order considers that it is in his/her best interest to make such an order can be accommodated in the Juvenile Justice Centre.[119] 17 year old males not meeting these criteria must serve their period of detention in Hydebank Wood Young Offenders Centre, operated by the Northern Ireland Prison Service and accommodating 15-21 year old males on remand, committal or conviction.

  8.  Additional provisions also exist which permit the detention of children with adults. 16 and 17 year olds can be detained with adults in Prison Service custody under the Treatment of Offenders (Northern Ireland) Act 1968. Article 13 of the Criminal Justice (Children) (Northern Ireland) Order 1998 states that those aged at least 15 deemed to be at risk of harming themselves or others must be remanded to Prison Service custody, and, under paragraph 6 Schedule 2, children in the Juvenile Justice Centre deemed to be at the same risk may be sent to the prison system. The Criminal Justice (NI) Order 2008 allows for "vulnerable" young men to be sent to the Juvenile Justice Centre, but the definition of vulnerable is narrow.

  9.  An announced inspection of Hydebank Wood Young Offenders Centre in November 2007 by the Criminal Justice Inspectorate Northern Ireland (CJINI)[120] documented a long catalogue of concerns in relation to the management of young boys within this adult prison facility. These included:

    (a) No policy for managing children and no adequate child protection policy.

    (b) Disciplinary outcomes were overly punitive, with excessive use of cellular confinement as a punishment for minor offences.[121]

    (c) Juveniles were routinely strip searched on arrival.

    (d) No separate arrangements existed for the escort of juveniles.

    (e) No formal induction programme existed for juveniles.

    (f) Inadequate healthcare provision and the need for a more caring and therapeutic approach for those at risk and those withdrawing from substance use.

    (g) Little if any planning to meet the individual educational needs of juveniles.

    (h) No separate resettlement policy for juveniles.

  10.  The CJINI report recommended that the Northern Ireland Prison Service should either remove young men under the age of 18 from Hydebank Wood or provide appropriately resourced, dedicated accommodation with a regime capable of meeting the needs of this population.

  11.  More recently the annual report for 2007-08 by the Independent Monitoring Board questioned "the rationale of housing boys under 18 at Hydebank Wood when there is no discernable difference in their regime and the regime of older male inmates".[122]

  12.  An additional issue which arises with the detention of boys under 18 with adults in the Young Offenders Centre is in relation to access to education, leisure facilities and freedom of association when on remand. Boys who are on remand in the Young Offenders Centre have no access to education and very limited access to leisure facilities; often being confined to their cells for a considerable period of the day. Further it would appear to be the case that children detained in Hydebank Wood who are under the compulsory school leaving age do not have access to the curriculum. This position is entirely unsustainable when one considers the British Government's obligations under the Human Rights Act 1998 and the UNCRC to provide education to all children and young people—Article 28, to ensure that all children have access to leisure and recreation—Article 31 and to uphold the right of all children to freedom of association—Article 15.

  13.  At present there are 14 boys under 18 years of age being held in Hydebank Wood.[123] While the Prison Service maintains that accommodating these young boys on a separate landing constitutes accommodating them in a separate facility all evidence points to the fact that this is neither a separate facility nor is there a separate regime in operation, a practice which is a clear breach of Article 37 (c) of the UNCRC. In addition, Hydebank Wood is an adult facility staffed by employees of the Prison Service who are not trained in dealing with the needs of children and young people and are often not Access NI checked for their suitability to work with children and young people.

  14.  The Northern Ireland Office should with urgency move all young boys under 18 currently detained in Hydebank Wood Young Offenders Centre to the age appropriate regime of Woodlands Juvenile Justice Centre (JJC). It should outline its plan of action and time frame in relation to this, detailing how it intends to address the prerequisites, including tackling the pressures created on places in the Juvenile Justice Centre through the inappropriate detention of various groups of children there(see next section).

DETENTION AS A MEASURE OF LAST RESORT?

  15.  The UN Committee expressed concern to the UK government about the high numbers of children deprived of their liberty and on remand and recommended that the UK government establish the principle that detention should be used as a measure of last resort and for the shortest period of time as a statutory principle.[124]

  16.  In Northern Ireland there is clear evidence that this is not happening with the overuse and inappropriate use of remand as well as the greater use of custodial sentencing than in other jurisdictions within the UK.

  17.  The Criminal Justice (Northern Ireland) Order 1998 provides for the detention of children aged 10-17. Use of custodial sentences is supposed to be restricted to serious crimes and protection of the public, although grave crimes can result in a specified period of custody in conditions ordered by the Secretary of State. The Court is compelled to provide justification for each custodial sentence. Analysis of figures provided by the Office of the First and Deputy First Minister shows that, between 1999 and 2004, on average 10% of young people under 18 in Northern Ireland convicted of an offence were sentenced to immediate custody.[125] This was greater than the proportion of under-18s receiving a custodial sentence in England and Wales during the same period, which was on average 8%.[126] Latest figures show that, in 2006, 7% of under-18s found guilty of an offence were sentenced to immediate custody (ie 89 out of 1,273).[127]

  18.  Research conducted by the Northern Ireland Human Rights Commission (NIHRC) into protecting children's rights in custody in Northern Ireland[128] found that the proportion of children admitted on remand from court was disproportionately high compared to numbers actually sentenced. Figures from the Youth Justice Agency annual report 2006-07 corroborate the NIHRC finding, indicating that court ordered remand made up 55% of initial admissions to the Juvenile Justice Centre.[129] By comparison committal on sentence was low at 42 out of 436 initial admissions in 2005-06 or 10%.[130]

  19.  The Northern Ireland Office, the PSNI, the Public Prosecution Service and the Northern Ireland Court Service should adopt measures to ensure that custody is a measure of last resort and reduce the number of children on remand as well as the amount of time spent on remand.

  20.  Looked after children are over represented in the criminal justice system and in custody in particular. In a review of 10-13 year olds admitted to custody in the Juvenile Justice Centre between January 2003 and August 2004, 17 of the 29 children admitted to custody were admitted from a residential care facility. Worryingly these 17 children had 40 admissions to custody between them.[131] Children who are disruptive in care homes and who present management problems are frequently moved via the Police and Criminal Evidence Order 1998 to the Juvenile Justice Centre.[132] Between April 2006 and March 2007 there were 436 admissions to custody in the Juvenile Justice Centre—36% of these were under PACE, 54% on remand and only 10% on committal. This "leakage from the care system" has been highlighted by various bodies including the NIHRC[133] and the Northern Ireland Commissioner for Children and Young People.[134]

  21.  A recent inspection of Woodlands Juvenile Justice Centre by the Criminal Justice Inspectorate Northern Ireland reconfirmed the existence of this pattern of movement from care to custody—it noted that 30% of all admissions during 2006-2007 came from looked after backgrounds; the percentage of looked after children in the Juvenile Justice Centre fluctuated between 22% to 58% of all residents on any given day.[135] The Criminal Justice Inspectorate in its report expressed concern at "the high turnover rate of children being placed in Woodlands and the disproportionate amount of young people who came direct to the Centre from residential care placements".[136] Kit Chivers, the former Chief Inspector with the Criminal Justice Inspectorate commented "inspectors were uneasy that young people could be placed in custody when the courts, police or social care agencies were unsure how to deal with them" and noted that "such placements breach international safeguards and remain more pronounced in Northern Ireland than elsewhere in the UK".[137]

  22.  The Northern Ireland Office should ensure that custody is never used because there is no alternative facility for a looked after child. The NIO should conduct immediate research into the reasons for the over representation of children from looked after backgrounds in custody and act swiftly on the findings in order to ensure that custody is always and only used as a measure of last resort. Alongside this there is a need for a review of the PACE provisions to ensure that particular consideration is given to looked after children, with special provisions being put in place so that this group of very vulnerable children only come into contact with the criminal justice system when appropriate and in exceptional circumstances.

CRIMINALISATION OF CHILDREN

  23.  The issue of criminalisation of children through a variety of means formed a recurrent theme in the UN Committee's recent examination of the UK government. A number of recommendations were directed towards addressing this phenomenon including raising the minimum age of criminal responsibility,[138] conducting an independent review of ASBOs with a view to abolishing their application to children,[139] protecting children against unlawful or arbitrary interference with their privacy through retention of DNA[140] and adopting measures to address the intolerance and inappropriate characterization of children within society.[141] There is growing concern in Northern Ireland among many agencies and organisations working with children and young people, as well as among children and young people themselves, about the pernicious effects of stigmatization, demonisation and criminalisation of children and young people through a combination of legislative and policy approaches as well as societal discourse and attitudes, often fuelled by hostile media coverage of issues relating to young people.

MINIMUM AGE OF CRIMINAL RESPONSIBILITY

  24.  In Northern Ireland, following the abolition of the rebuttable presumption of doli incapax in 1998 the age of criminal responsibility is 10 years of age, making it among not just the lowest in Europe but in the world.[142] As such it falls seriously below current international standards which recommend that state parties such as the UK should consider raising the age of criminal responsibility to 14 or 16 years of age.[143] The current Chairperson of the UN Committee Professor Yanghee Lee, in her address at the annual Children's Law Centre lecture in March 2008 noted that "it (is) the general understanding of the Committee that industrialized, democratic societies would go even further as to raising ( the minimum age of criminal responsibility) to even a higher age, such as 14 or 16".[144] In December 2008 the NIHRC echoed this call from the UN Committee, recommending that government raise the minimum age of criminal responsibility to between 14-16 years in line with international standards.[145]

  25.  In June 2005 the then High Commissioner for Human Rights with the Council of Europe Alvaro Gil-Robles described his "extreme difficulty" in accepting that "a child of 12 or 13 could be criminally culpable".[146]

  26.  The current development of a Bill of Rights for Northern Ireland presents an obvious opportunity to address the current unacceptably low age of criminal responsibility and to raise it in line with international standards as well as tailoring it to respond to the particular circumstances of Northern Ireland ie a society emerging from conflict where many children's lives have been blighted by conflict with the law and ensuing criminalisation.

NON-COMMENCEMENT OF CUSTODY CARE ORDERS

  27.  Article 56 of the Justice (Northern Ireland) Order 2002 made an amendment to the Criminal Justice (Children) (Northern Ireland) Order 1998 for the introduction of Custody Care Orders for 10-13 year olds (inclusive). Under this provision a child subject to a Custody Care Order would be placed in a secure accommodation setting, rather than in a youth justice setting. However, due to the failure to commence this provision, 10-13 year olds who are remanded in custody or receive a custodial sentence are currently sent to the Juvenile Justice Centre where they are detained with older children up to the age of 17 years. The ongoing non-commencement of Custody Care Orders also represents a failure by government to respond to the UN Committee's recommendation that it "develop a broad range of alternatives to detention for children in conflict with the law…"[147]

  28.  Figures cited earlier indicate that in the period between January 2003 and August 2004 29 children between the ages of 10-13 years were admitted to custody,[148] while figures obtained by the Irish News daily newspaper indicate that in the past year thirteen children aged between 10-13 years were detained in Woodlands JJC.[149] Given the unacceptably low age of criminal responsibility in Northern Ireland, coupled with the non commencement of these orders, children as young as ten years of age are not only criminalised but are afforded no special protection within the youth justice system.

  29.  The Northern Ireland Office (NIO) should expedite commencement of Article 56 of the Justice (Northern Ireland) Act 2002, thereby removing 10-13 year olds from the remit of the Youth Justice system.

ANTI-SOCIAL BEHAVIOUR ORDERS (ASBOS)

  30.  The UN Committee's recent recommendations to the UK government in relation to the use of ASBOs[150] consolidated an earlier recommendation by the UN Human Rights Committee to the UK government on ensuring that ASBOs were compliant with the provisions of the Covenant on Civil and Political Rights as well as ensuring respect for the privacy rights of those subjected to ASBOs.[151]

  31.  The children's rights concerns in relation to ASBOs generally have been well rehearsed and the Joint Committee is no doubt familiar with them. It is our firm view that ASBOs are in breach of Articles 6, 8 and 14 of the European Convention on Human Rights as incorporated by the Human Rights Act 1998 and Articles 2,3,12 and 40 of the UN Convention. However there are specific concerns in relation to their use within the Northern Ireland context which we would wish to draw the Joint Committee's attention to.[152] The removal of reporting restrictions, known as "naming and shaming" could be particularly dangerous in Northern Ireland given the influence of non-state forces and past connotations of anti-social behaviour.

  32.  A recent inspection of the operation and effectiveness of ASBOs in Northern Ireland found that while the numbers of ASBOs issued in the initial period after their introduction was less than in England and Wales their numbers were increasing in a similar pattern, pointing to the need for close monitoring of their use.[153] It is also worth noting that this increased use included a disproportionate use against children. Despite the widespread concerns in relation to ASBOs and their non compliance with the UN Convention the government has recently introduced interim orders on an ex parte basis, accentuating the significant concerns which already existed.[154]

  33.  Within the broader policy context we do not believe that ASBOs which are essentially punitive in nature, sit easily with the overarching preventative/restorative justice framework for children and young people which government claims forms the central tenet of its approach to youth justice since its major Criminal Justice Review in 2002.

  34.  The government should respond to the UN Committee's recommendation on ASBOs ie it should conduct an independent review on ASBOs with a view to abolishing their application to children.

COMMUNITY SAFETY STRATEGY

  35.  A further, and potentially extremely serious undermining of a broadly preventative approach to youth justice is posed by the current consultation by the NIO on their proposed Community Safety Strategy "Together, Stronger, Safer".[155] This proposed strategy if adopted would without doubt fuel what the UN Committee has described as "the general climate of intolerance and negative public attitudes towards children, especially adolescents…"[156] and stands diametrically in opposition to the UN Committee's recommendation that government " [take] urgent measures to address the intolerance and inappropriate characterization of children, especially adolescents.."[157] Tellingly the consultation paper doesn't contain a single reference to the UK's obligations under the UN Convention but rather contains a range of proposals which were broadly or specifically criticised by the UN Committee in September 2008.[158]

  36.  In addition to the children's rights concerns in relation to this document it is our view that it simply transposes questionable initiatives from other jurisdictions and as such pre-empts and undermines the role of our locally elected political representatives. It is our firm view that the NIO should desist with the development/imposition of this Strategy which significantly breaches children's rights.

CONCLUSION

  37.  The issues raised in this submission constitute the most serious of breaches of children's rights under international law. Given the very recent recommendations by the UN Committee in relation to the whole area of youth justice and the increasing criminalisation of children in our society there is now a pressing obligation on government to respond fully to these recommendations. We would urge the Joint Committee to examine government closely regarding their intentions in relation to the UN Committee's recommendations in this area.

February 2009





114   Save the Children and Children's Law Centre Northern Ireland NGO Alternative Report (March 2008) www.childrenslawcentre.org Back

115   ibid p6-7 Back

116   Article 96 of the Criminal Justice (NI) Order 2008 amends article 3 of the Criminal Justice Children (NI) Order 1998 and states that in addition to other grounds the court can make a juvenile justice centre order in respect of a young person who has attained the age of 17 "…if the court has been notified by the Secretary of State that there is no suitable accommodation for that child available in the Young Offenders Centre". The practical effect of this provision is that 17 year old girls are no longer detained in Prison Service Custody given that there is no young offenders centre for girls in Northern Ireland. Back

117   United Kingdom of Great Britain and Northern Ireland Third and Forth Periodic Reports to the UN Committee on the Rights of the Child (July 2007) CRC/C/GBR/4 Back

118   NIO Statistics and Research Branch Back

119   Article 3 Criminal Justice Children (NI) Order 1998 Back

120   Criminal Justice Inspectorate Northern Ireland Report of an announced inspection of Hydebank Wood Young Offenders Centre 5-9 November 2007 Back

121   The report noted that some children were locked in their cells on a basic regime for long periods in conditions similar to cellular confinement. One child was held this way for six weeks and had been denied a visit with his mother because of a minor altercation with staff. (HP14) Back

122   Independent Monitoring Board (2008) Hydebank Wood Prison and Young Offenders Centre. Independent Monitoring Board's Annual Report for 2007-08. Limavady.Priz'n'Press. p 6. As with the 2007 CJINI inspection report into Hydebank Wood, this report also expressed concern in relation to the adequacy of provision of mental health care services for young boys currently being held in Hydebank Wood and recommended that services be reviewed to ensure sufficient and appropriate resources to meet the assessed needs of children. Back

123   Figures supplied by Hydebank Wood Prison and Young Offenders Centre on 10 February 2009. Back

124   CRC/C/GBR/CO/4/paragraphs 78 and 79 Back

125   Office of the First Minister and Deputy First Minister (2007) Northern Ireland Report to the United Nations Committee on the Rights of the Child, September 2007, Belfast: OFMDFM, p100 Back

126   Allen, R. (2006) From Punishment to Problem Solving. A new approach to children in trouble, London: Centre for Crime and Justice Studies, Kings College London, p24 Back

127   NIO (2008) Court Prosecutions and Sentencing for 10 to 17 Year Olds 2006, Research and Statistical Bulletin 12/2008, Belfast: NISRA, p9 Back

128   Convery U and Moore L, Still in our Care: Protecting Children's Rights in Custody in Northern Ireland, NIHRC Belfast 2006 Back

129   Youth Justice Agency, Annual Report and Accounts 2006-07, Youth Justice Agency of Northern Ireland, Belfast, 2007, p48. Back

130   Ibid, p48. Back

131   McKeaveney, P 2005 Review of 10-13 year olds entering custody January 2003-August 2004 Belfast Youth Justice Agency. Back

132   Under article 39 of the Police and Criminal Evidence (NI) Order 1989 (PACE) when a child is charged with an offence and bail cannot be granted for one of the reasons set out under article 39(1) or the police officer has reasonable grounds for believing that the child should be detained in his or her own interests, he/she can be detained in a place of safety. The definition of place of safety includes a juvenile justice centre or hospital. Back

133   Op cited note 11 p34-36 Back

134   Northern Ireland Commissioner for Children and Young People Children's Rights in Northern Ireland 2004 p 234 Back

135   Criminal Justice Inspectorate Northern Ireland Inspection of Woodlands Juvenile Justice Centre May 2008 Back

136   Ibid vii Back

137   http://www.cjini.org/NewsAndEvents/Press-Releases/2004-(4)/August/Inspectorate-finds-juvenile-justice-centre-to--(1).aspx Back

138   Op cited at note 7 paragraph 78.a Back

139   ibid paragraph 80. Back

140   ibid paragraphs 36 and 37. Following the recent judgement by the European Court of Human Rights (S v Marper v UK 2008) government should urgently be putting in place provisions to ensure it complies with the judgement. Back

141   Ibid paragraph 25a Back

142   Muncie and Goldson 2006 "States of Transition: Convergence and Diversity in International Youth Justice" in Muncie and Goldson eds. Comparative Youth Justice, Sage Publications 2006 Back

143   UN Committee on the Rights of the Child General Comment No 10 (2007) Children's Rights in Juvenile Justice Back

144   Yanghee Lee, Professor "The Convention on the Rights of the Child-from Geneva to Northern Ireland, Bringing Children's Rights Home". Children's Law Centre Annual Lecture 2008. Back

145   NIHRC (2008) A Bill of Rights for Northern Ireland : Advice to the Secretary of State for Northern Ireland. Back

146   Council of Europe (2005) Report by Mr. Alvaro Gil-Robles Commissioner for Human Rights on his visit to the UK 4-12 November 2004 paragraph 105. Back

147   Op cited at note 8 paragraph 78 (b) Back

148   Op cited at note 14 Back

149   Irish News "Care Home Crisis puts Young with Criminals" 29 January 2009 Back

150   Op cited note 8 paragraphs 35 and 80 Back

151   UN Human Rights Committee (2008) Concluding Observations of the Human Rights Committee United Kingdom of Great Britain and Northern Ireland. CCPR/C/GBR/CO/6 paragraph 20. Back

152   ASBOs were introduced in Northern Ireland in 2004 through the Anti Social Behaviour (Northern Ireland) Order 2004. Back

153   Criminal Justice Inspectorate Northern Ireland (2008) Anti-Social Behaviour Orders. An inspection of operation and effectiveness of ASBOs. October 2008. Belfast CJINI. pvii Back

154   Criminal Justice (Northern Ireland) Order 2008 Back

155   Northern Ireland Office consultation on Together, Safer, Stronger-Community safety in Northern Ireland 2008-09. Included in the consultation document are proposals for dispersal zones, parenting support orders, parenting support contracts, noise nuisance, individual support orders and test purchase powers for alcohol. Back

156   Op cited at note 8 paragraph 24 Back

157   ibid paragraph 25 Back

158   These include a definition of anti social behaviour and restrictions on freedom of movement and peaceful assembly through introduction of dispersal zones. Back


 
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