Memorandum submitted by National Children's
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
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
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.
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.
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.
2. CHILDREN IN
2.1 Before considering the treatment of
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
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
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,
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.
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.
It is known that children in the care system are over-represented
in custodial populations but the reasons for this are poorly understood.
There is also an over-representation of children with mental health
or learning difficulties
in the criminal justice system. There are gaps in our understanding
about the processes that determine the specific destinations for
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,,
and Northern Ireland
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.
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.
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
3. PHYSICAL RESTRAINT
3.1 The recent Independent Review Of
Restraint in Juvenile Secure Settings
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,
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
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
3.7 NCB contends that there is a conflict
between the YJB Code of Practice on behaviour management
and the Prison Service rules on the Use of Force
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 riskand 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
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.
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
A Review of Safeguarding in the Secure Estate 2008. www.yjb.gov.uk Back
Hart, D (2008) Restrictive Physical Interventions in Secure
Children's Homes. www.everychildmatters.gov.uk Back
For reasons of brevity, we are using the term "children"
to refer to children and young people under the age of 18 Back
NACRO (2006) Reducing custody-a systemic approach Back
Department of Health (2006) Report on the implementation of
standard 9 of the National Service Framework for Children,
Young People and Maternity Services Back
NACRO (2008) Some facts about children and young people who
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
Hagell, A (2002) The mental health of young offenders. Bright
futures: working with vulnerable young people. Back
Talbot, J (2008) No-one Knows: Experiences of the Criminal Justice
System by Prisoners with Learning Disabilities and Difficulties Back
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
Deloitte (2008) Developing the Market for Welfare Beds in Secured
Children's Homes: DCSF Research Report RR055. Department for Children,
Schools and Families Back
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
Sinclair, R and Geraghty, T (2008) A Review of the Use of Secure
Accommodation in Northern Ireland. Back
Gilbert, N. (1997) (ed.) Combating child abuse: International
Perspectives and Trends. Back
Pitts, J and Kuula, T (2006) Incarcerating Young People: An Anglo-Finnish
Comparison. Youth Justice. 5 (3): 147-164 Back
Smallridge, P and Williamson, A (2008) Independent Review Of Restraint
in Juvenile Secure Settings. MoJ & DCSF Back
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
CSCI (2005) Safeguarding Children: the second joint Chief Inspectors'
Report on arrangements to safeguard children www.safeguardingchildren.org.uk Back
Ofsted (2008) Safeguarding Children : the third joint Chief Inspectors'
report on arrangements to safeguard children. www.safeguardingchildren.org.uk Back
Youth Justice Board for England and Wales (2006) Managing Children
and Young People's Behaviour in the Secure Estate: A code of practice
The Use of Force. (Prison Service Order 1600). HM Prison Service Back
R v HM Coroner for the North and South Districts of Durham and
Darlington  EWHC 76 (Admin) Back