Children's Rights - Human Rights Joint Committee Contents


Memorandum submitted by National Children's Bureaux (NCB)

1.  ABOUT NCB

  1.1  NCB promotes the voices, interests and well-being of all children and young people across every aspect of their lives. As an umbrella body for the children's sector in England and Northern Ireland, we provide essential information on policy, research and best practice for our members and other partners.

  1.2  NCB aims to:

    — challenge disadvantage in childhood;

    — work with children and young people to ensure they are involved in all matters that affect their lives;

    — promote multidisciplinary cross-agency partnerships and good practice;

    — influence government policy through policy development and advocacy;

    — undertake high quality research and work from an evidence-based perspective; and

    — disseminate information to all those working with children and young people, and to children and young people themselves.

  1.3  NCB has adopted and works within the UN Convention on the Rights of the Child.

  1.4  In 2003, NCB was commissioned by the Youth Justice Board for England and Wales (YJB) to produce a report on the use of physical intervention within secure settings for under 18 year-olds.[373] The purpose of the report was to describe and analyse the approaches to restraint in STCs, Young Offender Institutions and secure children's homes to support the YJB in ensuring a more consistent approach.

  1.5  In 2007, NCB was commissioned by the YJB to work in conjunction with them to assess current safeguarding policy and practice across the secure estate.[374]

  1.6  In 2008, NCB was commissioned by the Department of Children, Schools and Families to undertake a review of Restrictive Physical Intervention in Secure Children's Homes.[375]

2.  CHILDREN IN DETENTION

  2.1  Before considering the treatment of children[376] within secure settings, we would like to comment on the various ways that children enter such a setting. Reasons for placing a child in secure care may include punishment, protection of the child and/or the public, treatment and rehabilitation. They may also be detained for immigration purposes, but we are not addressing such children within this submission.

  2.2  Although the nature of locked institutions for children varies, they are a feature of most Western societies. Public authorities are faced with challenges about how best to provide services for children whose behaviour or needs are so extreme that they represent a risk to themselves or to society. The causes of such behaviour are complex, incorporating a range of psychosocial factors including: poor mental health; severe personal and social deprivation; physical, sexual or emotional abuse; intellectual impairment. One response to these challenges is to place such children in locked residential establishments. This denies children their liberty and is expensive. It is therefore important that such a step is taken only when necessary, and that the types of locked provision available are fit for purpose in addressing the child's problematic behaviour and the unmet needs that may be causing it.

  2.3  There are three main systems through which children and young people in England can be placed in a secure setting:

    Criminal justice. From the age of 10 years, children can be remanded or sentenced to a period in custody because they have committed an offence.

    Welfare. Children can be detained in a secure children's home because they are deemed to be a risk to themselves or others and are likely to abscond from an open setting.

    Psychiatric. Children can be compulsorily detained in a psychiatric unit in order to receive treatment for a mental illness. There is a range of in-patient provision, including secure and forensic units.

  Different legal processes and professionals are involved in each case, although there may be considerable overlap in the needs of the young people and individual young people may also spend time in more than one type of locked institution.

  2.4  Responses to young people's challenging behaviour appear to have changed over recent years in England, with increases in secure custodial and psychiatric provision alongside a decline in welfare placements. Since 1992 there has been a 90% increase in children and young people in custody,[377] with 2,905 remanded or sentenced in October 2008. Meanwhile, there has been a declining number placed in secure children's homes s on welfare grounds: only 60 such children were accommodated in England at 31 March 2008. The number of overall psychiatric in-patient beds for children increased by 26% between 1999 and 2006, when there were 91 units with 1,128 beds. The proportion of bed increases was most significant in the forensic, independent and specialist sector with a decline in the number of beds for younger children.[378] It is difficult to establish the numbers of children who are compulsorily detained, particularly as significant numbers are still being cared for on adult wards (30,000 in 2005-06).

  2.5  The rationale for this distribution of secure provision is unclear: research has shown that the "risk factors" are virtually the same across settings/pathways for a spectrum of poor outcomes including mental health problems, offending behaviour and out of home care.[379] It is known that children in the care system are over-represented in custodial populations but the reasons for this are poorly understood.[380] There is also an over-representation of children with mental health[381] or learning difficulties[382] in the criminal justice system. There are gaps in our understanding about the processes that determine the specific destinations for individual children.

  2.6  The overlap between their needs suggests that children within the three pathways to secure care may be to some extent the "same" children who could have been diverted down a different route if their challenging behaviour had been defined differently. This is important because the nature of the secure setting chosen has implications for the type of intervention that will be offered and the ways in which the child will be perceived subsequently.

  2.7  Recent studies on the use of secure children's homes in England and Wales[383],,[384] Scotland[385] and Northern Ireland[386] reveal a lack of clarity about the intended outcomes of such placements, other than to keep the child and society safe. The extent to which the child would receive therapeutic intervention or other services to tackle the unmet needs that placed them at risk was often difficult to identify. This raises questions about whether the child is any better able to cope on release and whether intensive intervention in the community would in some cases be a viable alternative.

  2.8  Child welfare systems are determined by a nation's theoretical framework for understanding the reasons for troubled or troublesome children.[387] For example, a study looking at the incarceration of young people in England and Finland found that, although there were ostensibly low rates of custody in Finland, a "shadow" youth justice system was in operation whereby troubled and troublesome young people were more likely to be compulsorily detained than in England in a range of psychiatric or social care institutions.[388]

  2.9  In its 2008 examination of the UK's compliance with the UN Convention on the Rights of the Child, the UN Committee on the Rights of the Child recommended that the state party should develop a range of alternative measures to custody (para 78a).

  2.10  NCB supports this recommendation and is calling for an Inquiry, overseen by the JCHR, into the right of troubled and troublesome children to effective support. This would be based on evidence about the best way of identifying and meeting their needs and the response they currently receive within the UK. In particular, we would like to question existing policy and provision for children entering secure care. Do all such children need to be deprived of their liberty and, if so, are the types of establishment where they are placed fit for purpose in meeting their needs?

3.  PHYSICAL RESTRAINT

  3.1  The recent Independent Review Of Restraint in Juvenile Secure Settings[389] for the government described the inconsistent approaches within custodial settings for children and made a number of recommendations for change, most of which have been accepted by government. NCB contributed to the review by undertaking a separate examination of restrictive physical intervention in secure children's homes and we welcome many of its findings. There are a number of areas, however, where we feel children's rights may continue to be jeopardised.

  3.2  Following the Review, two new methods of physical restraint will be developed: one for use in YOIs and the other in STCs. Both will include an element of pain for use in exceptional circumstances. We wish to raise a number of concerns about this decision:

    — NOMS have been asked to develop an Adapted control and restraint (C&R) technique for YOIs with four stages of intervention: defusion, non-painful techniques, pain-complaint techniques and debriefing. C&R is currently based solely on pain-compliance and is widely held to be effective by NOMS and prison service personnel. We would question whether they are best placed to develop and fully implement an alternative that requires such a different approach. The main focus of NOMS is adult offenders and they do not have expertise in the psychological or physical needs or young people. A previous attempt to pilot a non-pain compliant method was unsuccessful and we suggest a different approach is needed if that experience is not to be repeated.

    — The prison service have been asked to develop the new method for use in STCs, Again, we would question whether they have sufficient expertise in children's physiological and psychological needs.

    — STCs have not hitherto been authorised to use pain-complaint techniques but the new system will alter this by introducing wrist locks. We would question the evidence that such techniques are needed.

    — Although it is intended that pain complaint methods will be used only following a risk assessment and will be closely monitored, experience suggests a tendency to resort to the "heaviest" methods available. It is difficult to ensure that any monitoring arrangements are sufficiently rigorous to identify situations where restraint, or specific techniques, have been used unnecessarily. This is particularly difficult for external/independent monitors who were not present when the incident took place and are dependent on the quality of recording.

  3.3  In its 2008 examination of the UK's compliance with the UN Convention on the Rights of the Child,[390] the UN Committee on the Rights of the Child expressed concerns about the use the physical restraint in secure institutions and urged the UK Government to:

    "ensure that restraint against children is used only as a last resort and exclusively to prevent harm to the child or others and that all methods of physical restraint for disciplinary purposes be abolished" (para 39).

  3.4  The two most recent reports by the Joint Chief Inspectors[391],[392] have also expressed concern about restraint, in residential as well as custodial settings, and have recommended that the government issue guidance emphasising that restraint should not be used to gain compliance and should not rely on pain compliance.

  3.5  The Independent Review referred to in para 3.1 above only considered restraint in custody: restraint in other settings has not been reviewed and neither has the topic of solitary confinement. There continues to be a need for such a review.

  3.6  NCB continues to be concerned about the criteria for the justifiable use of restraint. Although the STC Rule change to allow STCs to use restraint in order to ensure "good order and discipline" has been rescinded, it continues to be a legally justifiable reason in schools and YOIs. NCB contends that the restriction on the use of restraint to "risky" situations is an essential safeguard; the term "good order and discipline" is not defined and therefore open to abuse. Although the government has accepted the Review recommendation to re-examine relevant legislation and guidance, this is only in relation to the secure estate. It will allow the anomaly of education staff, including those working within custodial or social care establishments, operating this lower threshold for the use of restraint.

  3.7  NCB contends that there is a conflict between the YJB Code of Practice on behaviour management[393] and the Prison Service rules on the Use of Force[394] regarding the legitimate grounds for using restraint. A fundamental principle of the Code was that restraint should be used only where there was a clear and specific risk—and never simply to secure compliance with staff instructions The PSO allows for the use of restraint if a child refuses a "lawful order" if it jeopardises the "good order" of the establishment.

  3.8  The decision to order a fresh inquest into the death of Adam Rickwood[395] would suggest that the justification for the use of restraint is contentious in law. No timescale has been established for any revised guidance and staff report some difficulty in interpreting the guidance on the criteria for using restraint as it stands. Even when the guidance is amended, staff will be required to interpret the criteria on a case-by-case basis. There is a need for an informed debate on the situations where restraint is justified, particularly in relation to children who are not presenting an immediate risk of injury to themselves or others. This would provide greater clarity for both staff and children.

  3.9  NCB is calling for a rights-based review of approaches to children's behaviour management across all relevant services. This should include schools, residential settings, foster care, hospitals, secure establishments, police and immigration detention centres. Such a review must consider the circumstances when it is legitimate to use restraint, strip searching and single separation and the safety, effectiveness and impact of particular methods. This will require research evidence, which is currently lacking.

February 2009






373   Hart, D and Howell S (2003) Report to the Youth Justice Board on the use of Physical Intervention within the Juvenile Secure Estate www.yjb.gov.uk Back

374   A Review of Safeguarding in the Secure Estate 2008. www.yjb.gov.uk Back

375   Hart, D (2008) Restrictive Physical Interventions in Secure Children's Homes. www.everychildmatters.gov.uk Back

376   For reasons of brevity, we are using the term "children" to refer to children and young people under the age of 18 Back

377   NACRO (2006) Reducing custody-a systemic approach Back

378   Department of Health (2006) Report on the implementation of standard 9 of the National Service Framework for Children, Young People and Maternity Services Back

379   NACRO (2008) Some facts about children and young people who offend-2006. Back

380   Darker, I., Ward, H., and Caulfield, L. (2008) An analysis of offending by young people looked after by local authorities. Youth Justice, 8 (2): 134-148. Back

381   Hagell, A (2002) The mental health of young offenders. Bright futures: working with vulnerable young people. Back

382   Talbot, J (2008) No-one Knows: Experiences of the Criminal Justice System by Prisoners with Learning Disabilities and Difficulties Back

383   Held, J Consulting Ltd (2006) Qualitative Study: the use by Local Authorities of Secure Children's Homes. Research Report 749. Department for Education and Skills. Back

384   Deloitte (2008) Developing the Market for Welfare Beds in Secured Children's Homes: DCSF Research Report RR055. Department for Children, Schools and Families Back

385   Walker, M. Barclay, A. Hunter, L. Kendrick, A. Malloch, M. Hill, M. and McIvor, G. (2005) Secure Accommodation in Scotland: its role and relationship with "alternative" services. Scottish Executive Back

386   Sinclair, R and Geraghty, T (2008) A Review of the Use of Secure Accommodation in Northern Ireland. Back

387   Gilbert, N. (1997) (ed.) Combating child abuse: International Perspectives and Trends. Back

388   Pitts, J and Kuula, T (2006) Incarcerating Young People: An Anglo-Finnish Comparison. Youth Justice. 5 (3): 147-164 Back

389   Smallridge, P and Williamson, A (2008) Independent Review Of Restraint in Juvenile Secure Settings. MoJ & DCSF Back

390   UN Committee on the Rights of the Child (2008) Concluding Observations of the Committee on the Rights of the Child: United Kingdom of Great Britain & Northern Ireland www.ohchr.org Back

391   CSCI (2005) Safeguarding Children: the second joint Chief Inspectors' Report on arrangements to safeguard children www.safeguardingchildren.org.uk Back

392   Ofsted (2008) Safeguarding Children : the third joint Chief Inspectors' report on arrangements to safeguard children. www.safeguardingchildren.org.uk Back

393   Youth Justice Board for England and Wales (2006) Managing Children and Young People's Behaviour in the Secure Estate: A code of practice http://www.yjb.gov.uk Back

394   The Use of Force. (Prison Service Order 1600). HM Prison Service Back

395   R v HM Coroner for the North and South Districts of Durham and Darlington [2009] EWHC 76 (Admin) Back


 
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