Around 2,500 children are detained by the state in England and Wales at any one time. Some are detained in hospitals for therapeutic care, and some are detained in custody due to criminal convictions. Although these institutions have different functions, they face many common issues. These children are detained for different reasons, but most are highly vulnerable and many have multiple challenges. They are under the care of the state, and yet they can be subject to practices of restraint and separation from normal human contact that can cause harm and undermine the therapeutic and rehabilitation aims of their detention. These situations engage rights under the European Convention on Human Rights (ECHR): Article 2, the right to life; Article 3, the prohibition of inhuman or degrading treatment; Article 5, the right to liberty and security; Article 8, respect for private and family life.
We heard evidence from young people who had been restrained and separated from normal human contact whilst detained in hospital and custody, and from parents of children who have been detained. Their testimony powerfully illustrated to us the damaging impacts upon children when they are restrained or separated, including long-term impacts. We received unanimous evidence from medics, inspectors, lawyers, and staff who work in detention, that restraint and separation are harmful to children and should be avoided if at all possible.
Some practices are particularly extreme or controversial. We urge greater monitoring of the use of the controversial ‘prone restraint’, which is currently being reviewed, and urge its use only in exceptional circumstances when absolutely necessary. The deliberate infliction of pain in Young Offenders’ Institutions (YOIs) is unacceptable under any circumstances under rights legislation. The use of restraint for maintaining ‘good order and discipline’ must be prohibited in all but the most exceptional of circumstances.
Separation from normal human contact can take different forms, and several different terms are in use; all of these practices can have negative impacts. They range from segregation into small groups, to isolation from other children but with constant observation by staff, to being totally alone in a child’s own cell or in a designated unit. We use the term ‘separation from normal human contact’ or ‘separation’ to refer to all of these practices. Where isolation from normal human contact exceeds 22 hours per day, we use the term ‘solitary confinement’, as defined in international law; where this lasts for over 15 days, it is defined as “prolonged solitary confinement”. This is contrary to human rights law in all circumstances. The Government must immediately take steps to ensure that separation of children from human contact never becomes solitary confinement. Decisions, and reviews of decisions, by YOIs and hospitals to extend periods of separation should be reported to the responsible Ministers on a monthly basis. The information must be certified by the Ministers and laid before each House for publication.
For all forms of restraint and separation (whether acceptable or not), data collection is incomplete in hospitals and custody, and there is good reason to believe that these practices are under-reported. Data is presented in ways that make it harder to interpret, and the use of different definitions makes it harder to compare between different types of institutions. Data collection must be improved, and we recommend that institutions collect and publish data about all types of restraint and separation.
Data from hospitals and custody shows that children are restrained too often, with potentially thousands of unjustified restraints each year, and that separation is also used too often. Rates of restraint and separation are even higher for BAME children. We believe that the high rates of restraint and separation are incompatible with the threshold of ‘last resort’, and are therefore in breach of the rights of children. The issue is that staff sometimes do not attempt de-escalation methods, and too quickly move to restraint or separation. We recognise that staff face difficult situations, and they must be supported to use better alternatives whenever possible.
The excessive use of restraint and separation are partly due to insufficient staffing levels, insufficient staff training and experience, and inappropriate facilities. We recommend increased staffing levels, improved training, and a better mix of staffing and skills, all of which will increase the range of options that can be used instead of restraint and separation. We also conclude that some children are fundamentally in the wrong institutions (although some should not be in institutions at all), due to lack of spaces in more appropriate units. We recommend that the secure estate is reconfigured to ensure that there are sufficient spaces in the correct types of units (for example to provide mental health care to child offenders) and to ensure that all children can be placed close enough to home to allow regular family visits.
The rights of children in detention are often not enforced. The systems in hospitals and custody do not do enough to ensure that children are sufficiently aware of their rights and of how to appeal if their rights have been breached. Children and families (and other representatives) often do not have full access to evidence that would help in appeals.
Children lack confidence in the appeals systems: they feel that any recompense is not comparable with the impact of restraint or separation; and they are often not made aware of the outcomes of successful appeals by other children. We recommend more more involvement for families in decisions about the children; more proactive roles for independent advocates; more effective debriefs after incidents, and clear communication of disciplinary action against staff. We also recommend the annual publication for each institution of data about appeals and their outcomes.
Published: 18 April 2019