Children's Rights - Human Rights Joint Committee Contents

Memorandum submitted by the Standing Committee for Youth Justice (SCYJ)


  1.1  The Standing Committee for Youth Justice (SCYJ) welcomes this opportunity to submit evidence to the Joint Committee's inquiry into children's rights. We are pleased to note that matters pertaining to children in trouble with the law feature prominently in the list of issues highlighted as being of particular interest to the Committee. This group of children's human rights are systematically denied by a youth justice system that is in urgent need of reform.

  1.2  We believe that this reform must fully implement international standards of juvenile justice in order to address the following priority issues:

    — Alarming increases in the use of custody for children over recent years which fly in the face of the principle of last resort.

    — Serious concerns about the safeguarding of children in custody; high levels of self harming, incidence of suicide and the use of Government sanctioned painful restraint techniques.

    — A youth justice system that is insufficiently distinct from that for adults and so does not focus adequately on children's particular characteristics and needs.

    — The failure to decriminalise prostitution for children in order to guarantee that they are perceived and treated as victims rather than as offenders.

    — The criminalisation of large numbers of the child population, due in large part to the very low age of criminal responsibility.[525]

    — Responses to offending that fail to address children's welfare needs and hence tackle the root causes of their behaviour and re-offending.


  2.1  The SCYJ believes that the current youth justice system is insufficiently distinct from that for adults and so does not focus adequately on children's particular characteristics, needs and interests. Legislation and policy for children who offend falls short of international human rights standards and is not congruent with that which deals with children and families more broadly, in respect of welfare, safeguarding, education and health.

  2.2  In its concluding observations on the UK, published on 3 October 2008, the United Nations committee on the rights of the child (UNCRC) made a number of severe criticisms of the UK's failure to comply with the convention on the rights of the child (CRC) in its treatment of children in the criminal justice system.

  2.3  The committee recommended that the UK should fully implement international standards of juvenile justice, in particular articles 37, 39 and 40 of the CRC, as well as the General Comment n° 10 on "Children's rights in Juvenile Justice", the United Nations Standard Minimum Rules for the Administration of Juvenile Justice ("the Beijing Rules"), the United Nations Guidelines for the Prevention of Juvenile Delinquency ("the Riyadh Guidelines") and the United Nations Rules for the Protection of Juveniles Deprived of Their Liberty ("the Havana Rules"). The Committee also made a series of specific recommendations, some of which are discussed below under the headings outlined by the JCHR in its call for evidence.


  3.1  It is SCYJ's opinion that custody is not always used as a last resort or for the shortest time possible in contravention of article 40 of the CRC and this is borne out by the statistics. At any one time there are about 3,000 children held in juvenile custody in England and Wales, many of them for non-violent offences. Figures show that at 28 March 2008 of all those held at Young Offender Institutions (YOIs) 35% were for non-violent offences and 15% for breach. In Local Authority Secure Children's Homes (LASCHs) the figure show a similar picture (32% and 19% respectively) and in Secure Training Centres (STCs) too (28% and 16% respectively).[526] The average length of stay across the estate is 76 days.[527] Despite the Youth Justice Board's target of a 10% reduction in children entering custody between 2005 and 2008 (approved by the Home Office), the numbers of children entering custody have risen, and did not decrease over this period and the target has now been dropped.

  3.2  In its concluding observations the UNCRC recommended that "the State party develop a broad range of alternative measures to detention for children in conflict with the law and 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."[528]

  3.3  During the recent passage of the Criminal Justice and Immigration Act 2008 SCYJ lobbied for the introduction of a distinct custody threshold for children that must be met before any child is sentenced to custody, in order to ensure that children are only locked up as a last resort, and for reasons of public protection, save where mandatory custodial sentences apply.[529] We were disappointed that the Government did not introduce such a threshold in this legislation and urge them to do so at the earliest opportunity in order to implement the UNCRC's recommendation.

  3.4  There is also significant evidence that spending time in custody is inflicting further damage on children who have often already experienced abuse or loss. One third of children in custody are officially classed as vulnerable.[530] The starkest evidence of this is the number of child deaths in custody since 1990, which has now reached 30. Furthermore reports from the Chief Inspector of Prisons have repeatedly raised serious concerns about the safety of children in custody. A report published in February 2006 highlighted the high incidence of children self-harming in prison (1,324 incidents in 2004-05—that is 25 incidents of children self-harming in prison every week),[531] leading the Chief Inspector to comment: "Underlying these (issues) is the question of whether prison is the right or appropriate environment for many of the young people who end up there—and in growing numbers which siphon off the resources needed to provide appropriate mental health services, and other support mechanisms and interventions in the community".[532]

  3.5  In July 2007 the Government called for a joint independent review of restraint of children in custody in response to strong opposition to new rules introduced in July 2007 which purported to allow children in secure training centres (STCs) to be restrained for good order and discipline. The report was published in December 2008 but the Government's response, published at the same time, failed to address the serious human rights breaches identified in 2008 by your committee[533] and highlighted again in the UNCRC's concluding observations.[534] The SCYJ endorses the recommendations made on this issue by the Children's Rights Alliance for England (CRAE) in its submission to this Inquiry.


  4.1  Despite the withdrawal of the UK's reservation to article 37 members of SCYJ have reported concerns that children are, on occasion, still being held in adult prison accommodation. We would suggest that the Committee question the Government on this point.

  4.2  The SCYJ further believes that holding children in Prison Service accommodation is in direct contravention of article 40.3 of the CRC that requires detention facilities to be "specifically applicable to children". The prison service is an adult institution. It is designed for adults, who are 96% of its clientele. This is reflected in arrangements for management, staffing, training, and regime content. YOIs that hold children are managed by area managers with generic responsibility for all prisons. This creates the real risk that balancing the demands of adult prisons with those of children's custody will jeopardise a genuinely child centred approach. For example, recruitment of prison service operational staff is insufficiently specialised, so that staff may not have a particular interest in working in child custody as opposed to adult facilities. We recommend an urgent move away from prison settings for children.


  5.1  In its concluding observations the UNCRC recommended that "The State party should always consider, both in legislation and in practice, child victims of these criminal practices, including child prostitution, exclusively as victims in need of recovery and reintegration and not as offenders." [535]

  5.2  Clause 15 of the Policing and Crime Bill currently before Parliament amends the offence of loitering or soliciting for the purposes of prostitution, as set out in s.1 of the Street Offences Act 1959 ("the 1959 Act"). The SCYJ regrets that, despite the Government's repeatedly stated intention to make clear that involving children in prostitution is a form of child abuse, the opportunity is not being taken through this clause to implement the CRC recommendation by abolishing the power to prosecute of a child over the age of ten for offences under s. 1 Street Offences Act 1959. During the passage of the Criminal Justice and Immigration Act 2008 the Minister, Vernon Coaker gave an assurance that the Government would give further consideration to this matter and we are therefore disappointed not to see the legislation amended in this Bill.[536]

  5.3  The numbers of children aged under 18 who have been prosecuted under s.1 are extremely low—one prosecution and two cautions in 2005.[537] However even though the levels of prosecution are low the fact that the offence remains is potentially very damaging, not least because the young people on the street are not aware of that. What they will know, or be told, is that it continues to be illegal and therefore they are at risk of prosecution. That alone is likely to make a young person sceptical of working with the authorities. Even more worrying, however, is research that suggests that continuing to criminalise young people in this way actively assists the controlling influence of those who exploit young people through prostitution. It has been demonstrated that "pimps" of young prostitutes are able to exercise control by threatening to report them to the police. Domestic child abuse literature demonstrates that such threats can seem real and exercise a controlling influence over a child or young person and yet again this literature appears to be ignored.[538]


  6.1  One of the most notable features of the youth justice system in recent years has been the fall in the proportion of children diverted from court. Despite widespread agreement at the beginning of the 1990s, that avoiding prosecution was an effective method of dealing with youth offending, the rate of diversion[539] began to decline rapidly, falling between 1992 and 2002 from 73.6% to 53%.[540] The final warning scheme, introduced during 2000, limits the number of pre-court options to a maximum of two for any child, reinforcing the trend towards increased prosecution. SCYJ believes that such an approach runs counter to research suggesting that prosecution is ineffective in terms of preventing reoffending, and that diversion also carries with it substantial cost benefits.[541] Bringing younger children into the court arena for less serious matters also increases the risk of a subsequent custodial outcome where a child continues to offend.

  6.2  SCYJ considers that the age of criminal responsibility should be raised substantially, as recommended by the CRC.[542] Such a move would immediately divert large numbers of younger children from the criminal justice process into more effective, informal, responses to their behaviour.

  6.3  Children's offending is typically but one symptom of multiple problems across the spectrum of their lives. The Government Social Exclusion Unit's 2002 report Reducing Re-offending by Ex-Prisoners illustrated graphically the wider social and welfare problems faced by children in trouble with the law. 60% had been "looked after", as a result of social and family problems, 35% with three or more placements, 25% of males and 40% of females had suffered violence at home, 87% had missed significant education, as a result of which over 25% had literacy and numeracy skills below age seven and 50% below age 11.[543] There is substantial evidence that a welfare-led approach which seeks to identify and meet these unmet needs is a much more effective means of preventing re-offending than a punitive one. Therefore it is of serious concern the Government's recent Youth Crime Action Plan (YCAP) states that its aims of "preventing offending and reducing re-offending by [children and] young people, building public confidence, supporting victims and making children and young people safer and ensuring that [children and] young people in the youth justice system achieve the five Every Child Matters outcomes … can only be achieved through a 'triple track' approach of tough enforcement, non-negotiable support and challenge and prevention to tackle problems before they escalate".[544]

  6.4  Article 40(4) of CRC requires that responses to offending behaviour be proportionate to young people's circumstances and to their offending.[545] Moreover, as the Beijing Rules make clear, interventions aimed at safeguarding the welfare of the child should not infringe upon the fundamental right of the young individual to receive a proportionate response.[546] In this context SCYJ has serious concerns about the "scaled approach" to youth justice interventions, a revised version of which has been published in February 2009 and which is soon to be implemented by the Youth Justice Board alongside the new Youth Rehabilitation Order (YRO) introduced by the Criminal Justice and Immigration Act 2008.[547] The basic premise of the scaled approach is that the intensity and duration of a youth justice intervention should be related to the assessed risk of re-offending as determined by the score derived from Asset, the standard assessment tool developed on behalf of YJB, which is completed for all young people who come to the attention of the youth offending teams (YOT). In this way the level of compulsory intervention should be determined by the risk of what the young person might do in future rather than the nature of the offence. The scaled approach—to the extent that it might allow more intensive responses than would otherwise be warranted by the seriousness of the offending—appears to be in tension with international obligations.

  6.5  The SCYJ considers that the limitations of any process of risk prediction are likely to imply irreconcilable tensions with a children's rights agenda. Asset, it should be acknowledged, is a useful indicator of whether or not a young person is likely to reoffend: in an evaluation conducted on behalf of the YJB, the tool was shown to have a predictive validity of over 79%. Nonetheless, in almost one in three cases (30.6%), the assessment failed to make the correct prediction over a two year follow up period.[548] These false predictions were equally split between false negatives and false positives—so that nearly one in six young people who, on the basis of their Asset score, would be predicted to reoffend did not do so. The scaled approach would require higher levels of intervention in such cases, which could not be justified on the basis of a need to prevent offending or as a proportionate response to their behaviour. Such an outcome would represent a significant violation of those young people's rights.


  7.1  Although not noted as a matter of particular interest to the Committee we would also like to draw your attention to the recommendations made by the UNCRC in relation to relation to Anti-Social Behaviour Orders (ASBOs). It recommended that the UK conduct an independent review on ASBOs with a view to abolishing their application to children. This is a recommendation that the SCYJ would wholeheartedly endorse.

February 2009

525   "Each year around 100, 000 young people aged 10-17 enter the criminal justice system for the first time." H M Government (2008) Youth Crime Action Plan 2008 p.14 Back

526   Peter Smallridge and Andrew Williamson. Independent Review of restraint in Juvenile secure settings. MoJ, DCSF 2008 Back

527   Ibid. Back

528   Committee on the Rights of the Child, Forty-ninth session, Concluding observations: UK and Northern Ireland (CRC/C/GBR/CO/4) 20 October 2008 Back

529   SCYJ emphasises that we disagree with the use of mandatory custodial sentences for children but the timescale of the CJIA did not allow for a wider debate on this issue. Back

530   Written answer to Parliamentary Question, 28 March 2007: Column 1653W Back

531   Annual Report of HM Chief Inspector of Prisons for England and Wales 2004-05, page 56. Back

532   Annual Report of HM Chief Inspector of Prisons for England and Wales 2005-06, page 44. Back

533   Parliamentary Joint Committee on Human Rights, Session 2007-08, Eleventh Report: Use of restraint in secure training centres, 7 March 2008 (HL 65/HC 378) Back

534   Committee on the Rights of the Child, Forty-ninth session, Concluding observations: UK and Northern Ireland (CRC/C/GBR/CO/4) 20 October 2008 Back

535   Committee on the Rights of the Child (2008) Consideration of reports submitted by states parties under article 44 of the Convention. Concluding observations: United Kingdom of Great Britain and Northern Ireland . para. 74 Back

536   Hansard, House of Commons Tuesday 27 November. Column 537ff Back

537   Ibid. Back

538   Gillespie. A. A., Web Journal of Current Legal Issues (2007) Diverting children involved in prostitution. Back

539   The rate of diversion is the proportion of all children processed for offending who receive a caution or more recently a reprimand or final warning Back

540   Some fact about young people who offend-2002, Nacro youth crime briefing, March 2004 Back

541   Kemp. V, Sorsby, A, Liddle, M and Merrington, S (2002) Assessing responses to youth offending in Northamptonshire, Research briefing 2, Nacro Back

542   UN committee on the rights of the child, 49th session, Concluding Observations on the United Kingdom of Great Britain and Northern Ireland, 3 October 2008 (CRC/C/GBR/CO/4) Back

543   Social Exclusion Unit (2002) Reducing Re-offending by Ex-Prisoners Annex D. Back

544   DCSF (2008) Youth Crime Action Plan para. 26 Back

545   Article 40(4) of UNCRC Back

546   United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules), commentary to Rule 5.1 Back

547   Youth Justice Board (2009) Youth Justice: the scaled approach, YJB Back

548   Baker, K, Jones, S, Merrington, S and Roberts, C (2005) Further development of Asset, YJB Back

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