3Separation from human contact
Human rights framework
35.The UN Convention on the Rights of the Child includes a prohibition on “placement in a dark cell, closed or solitary confinement, or any other punishment that may compromise the physical or mental health or well-being of the child concerned”.85 The ECtHR has drawn a distinction between “complete sensory isolation” and partial or relative isolation (for example through restrictions on contact with other prisoners or family members).86 We considered various forms of separation from human contact to determine whether they can harm a child’s physical or mental well-being. In most of these practices, the children lack any human contact for a period of time, including the specific issue of solitary confinement. In some practices, children are constantly observed by a member of staff, but are isolated from ‘normal’ human contact.
Experiences and impacts of separation
36.All types of institution allow staff to separate children temporarily (for a few hours) after an incident, to allow tensions to diminish before a swift return to the child’s usual place in the unit. Beyond that, there are significant differences between settings. Hospital staff (in CAMHS and ATUs) are allowed to segregate children into small groups or put an individual child into seclusion for the containment of severe behavioural disturbances which are likely to cause harm to others.87 YOI staff are allowed to segregate children into small groups and to isolate a child from their peers.88 Another scenario in YOIs is a child being isolated in their own cell on some form of reduced privileges regime: this is not regulated by the guidelines.
37.The evidence highlighted common issues that affect children whenever they are separated from normal human contact. Rosie told us about being put on “ward restriction” for six months while in a hospital’s CAMHS unit. She was segregated with a small number of patients, and sometimes isolated with no other patients, and was always in the presence of staff:
“I ended up on 24-hour observations for six and a half months straight. There was someone with me in my room at all times … I was not allowed off the ward to the dinner hall or anything like that … It was very dehumanising. It felt like I was in a cage, especially with the ward restriction … It was so difficult to find a reason to carry on and even recover, and as I said it felt so dehumanising because I could not do anything without someone there with me. I could not go to the bathroom without someone coming with me, and I was not even allowed outside.”89
38.Julie Newcombe conveyed accounts from parents whose children had been separated from other patients in hospital: “My son was kept in seclusion for up to nine hours at a time. The rule was that he could not leave until he was quiet. With his anxiety and sensory presentation, there was no way this was possible. He started to bang his head against the wall and would bite the wood in the doorframe out of desperation.”90 The Howard League for Penal Reform conveyed the experiences of children who were kept in the own cells in custodial settings: “A 16 year old [in a YOI] … had been locked in his cell on the wing for over 23 hours a day for days on end … He said he was now ‘fed up with it’ and that he felt ‘caged like a dog’ … he felt sad and angry. His sleep was ‘all over the place’—he would struggle to get out of bed and felt he had no energy.”91 Jeremy told us about his daughter Bethany, who is autistic and who has been isolated in a single room for almost two years at an ATU:
“Their answer to that was to lock Bethany away. When I visited Beth I knelt down at a hatch in the door six inches square and talked to my daughter through that hatch, the hatch they feed her through … In that room Beth has no privacy. They watch Bethany showering and going to the toilet … A child with my daughter’s sensory issues is placed in a seclusion cell, which is a horrific environment anyway … Not only is she shut in an unsuitable environment, but her activities are restricted. What can you do with a child through a little square hole in the door?”92
39.William told us about being kept in isolation (on ‘block’) for 13 days while detained in a YOI:93
“It is not for the weak-minded, and it also depends what block you’re on. There were a lot of young boisterous guys. Some are happy to be there. There could be two guys from rival gangs who have a fight and they are put on block, but I could be on block for something completely different. All night those two guys are arguing out the window and I am trying to sleep. They shout, ‘You X, you this, you that’. There are people with mental health problems. It is not nice … it is literally 23 and a half hours with a toilet and sink. I used to get 25 minutes to walk around the exercise yard and five minutes to make a phone call or shower, and then I would be back in my cell. I would get my dinner, then come out and I would get a book to read and I would be back in there.”94
40.William also told us about being confined to his cell on ‘lock down’ when other children caused disruption:
“Some people in cells would smash up TVs, go on dirty protests, do whatever and just be a total pain. When they are a total pain, that distracts attention from everyone else, so we would be banged up because of somebody else’s nonsense. There are a lot of difficult prisoners so I was kind of empathetic to the fact that the staff had to deal with them, but we suffered a lot because of those difficult prisoners. One guy could take away 10 officers because they had to calm him down … I am quite a calm person, so I took it in my stride, really, but then there would be people shouting out abuse and banging their doors all day and screaming. There is nothing you can do except just listen and hope for the best.”95
41.There are ongoing arguments about definitions of separation. We have focused on whether practices of separation, whatever their duration or definition, cause harm to children, noting the view of Dr Sharon Shalev of the University of Oxford that segregation has three features that can cause harm: social isolation; reduced sensory input; and increased control of the person.96
42.Separation causes psychological harm, and can be particularly profound for children, as the British Medical Association wrote: “Negative health effects can occur after only a few days in isolation, but the severity of symptoms increases with the length of confinement … For children and young people, who are still in the crucial stages of developing socially, psychologically, and neurologically, the health effects of isolation and solitary confinement can be particularly damaging.”97 The BMA cited studies into the harmful effects, which include “anxiety; depression; hostility, rage and aggression; cognitive disturbances; hypersensitivity to environmental stimulation; paranoia; and in the most extreme cases, hallucinations and psychosis”. They also noted that children who are isolated even for short durations can experience “paranoia, anxiety and depression”, and that children who are isolated for extended durations “are more likely to attempt or commit suicide”.98
43.Separation can also reinforce existing mental health problems, particularly if the isolation is of long duration. A mother whose son was isolated for four weeks while in a custodial setting wrote that isolation was sometimes “used for those who are suffering from mental health problems who have, in their emotional state, become uncontrollable”.99 The Royal College of Psychiatrists explained regarding CAHMS and custody: “When a young person with mental health and/or emotional difficulties is denied two hours of meaningful contact and so enters a state of solitary confinement, their mental health problems and/or emotional difficulties are likely to be significantly exacerbated.”100 The Royal College of Psychiatrists also explained that this risk of reinforcing problems is particularly acute because of the high prevalence of pre-existing issues:
“There are higher rates of ADHD, autism, and learning difficulties in secure establishments than in the community; these are specific risk factors for the exacerbation of mental and behavioural distress for those in solitary confinement. Whilst some with autism may find separation helpful at times, those with ADHD and learning difficulties often find it more difficult than other young people. For those with ADHD, it may trigger more impulsive risk behaviour that warrants further consequences and therefore trigger a downward spiral of behaviour that the young person cannot get themselves out of without support.”101
44.Separation can undermine the aims of detention, for example Rosie said of her ward isolation (when she was observed by a member of staff, but lacked ‘normal’ human contact) that “I would not have been able to come off the 24-hour observations even if I had wanted to, because I was so unused to being on my own”.102 Children who are separated from others will miss out on the usual routine of an institution, for example children in YOIs can miss some or all of the requisite weekly routine of 15 hours of education and two hours of physical exercise.103 In the case of custodial settings, a report by the Children’s Commissioner noted that isolation can actually contribute to reoffending:
“Children often come to the secure estate establishments from very complex backgrounds, which means that they have previously lacked structure and guidance in their lives and that emotional regulation is difficult for them to grasp. Prolonged or frequent isolation can often serve to worsen these problems as the children fail to learn the important lessons of social order and interaction which they will need when they leave the establishment. In that sense, isolation can have a long-term negative impact on a vulnerable child and can contribute to the perpetual vicious cycle of release and re-offending. This would also explain an earlier finding of this study, that the children who were isolated once are likely to be isolated again.”104
45.We acknowledge that short-term separation has a role to play in allowing ‘cooling off’ after difficult incidents, and longer-term separation is sometimes necessary for medical observations and treatment, although it poses risks. Separation is not appropriate for other purposes. We conclude that the use of separation from human contact is harmful to children if used for more than a few hours at a time and, beyond that, it can amount to inhuman or degrading treatment that is a breach of children’s rights.
Prevalence of separation
46.For hospitals, NHS England’s Mental Health Bulletin105 for 2017–18 shows that 14 people aged under-20 were subject to 23 segregations (1.6 per person on average), and 366 people aged under-20 were subject to 1544 seclusions (4.2 per person on average). NHS England published data in 2018 in response to an FoI request about people with learning disabilities in hospital in-patient units, showing that seclusion was used 2,000 times in 2017, (up 40% from 2016).106
47.HMIP’s annual survey of children in custody heard that a quarter of boys in YOIs said they had spent a night in the segregation unit in 2015–16, rising to 38% in 2016–17, although falling again to 30% in 2017–18.107 Rates are higher for BAME children.108 In late 2018 the Children’s Commissioner for England published new data about separation in YOIs and STCs (the issues with separation are mainly in YOIs),109 which she presented to us in an evidence session.110 In a six-month period in 2018 (compared, where possible, to a similar period in 2014), separation occurred 437 times (up 43% from 2014), and 314 children were segregated at least once.111 70% of separations lasted over a week in in 2018, the average length of separation episodes was 16 days in 2018 (doubled from 8 days in 2014), and the longest separation in 2018 was 100 days.
48.The Youth Custody Statistics reports also include data about “single separation” in STCs and SCHs, which is defined as “the confining of a child or young person in an area as a means of control, without the child or young person’s permission or agreement. A member of staff is not present and the door is locked to prevent exit. The data in this section refer only to Secure Children’s Homes (SCHs) and Secure Training Centres (STCs).”112 In the year ending March 2018, there were 3,822 single separations, affecting around 100 children in SCHs and STCs;113 that is, about a third of children were separated at least once, and on average over three times each. Data are not held for YOIs, which may mask a problem of unreported separation. HMIP’s survey of children in custody found that 64% of children in STCs said that, in 2017–18, they had been made to stay in their room away from the other children because of something they had done114 (up from 48% in 2015–16).115 The Youth Justice Board (which monitors the work of the Youth Custody Service) is planning to undertake a wide inquiry into ‘time out of rooms’, which will offer an opportunity to regulate the use of confinement in children’s own cells.
49.We are concerned that the data published about separation in custodial settings and hospitals is not complete, and is hard to interpret. Each sector (health and custody) has datasets about restraint that are at once incomplete and also overlapping, making it difficult to obtain a clear picture of the issues. Furthermore, the different terminology used by each sector to describe essentially the same practices simply serve to complicate the making of comparisons.
50.In hospitals and custodial settings, children are separated from human contact (whether in their own room or in a particular unit) too often and for too long, where other options would be less harmful and more effective. The problem is even worse than is reported, due to some data not being collected fully and some data not being collected at all in particular for the separation of children in their own cells in YOIs. We recommend that all use of separation in all institutions is regulated and monitored, with data published annually by institution.
Solitary confinement
51.The Istanbul Statement on the Use and Effects of Solitary Confinement provides the following definition: “Solitary confinement is the physical isolation of individuals who are confined to their cells for twenty-two to twenty-four hours a day. In many jurisdictions prisoners are allowed out of their cells for one hour of solitary exercise. Meaningful contact with other people is typically reduced to a minimum. The reduction in stimuli is not only quantitative but also qualitative. The available stimuli and the occasional social contacts are seldom freely chosen, are generally monotonous, and are often not empathetic.”116 This definition is adopted in the UN Standard Minimum Rules for the Treatment of Prisoners (‘Mandela Rules’),117 that also define “prolonged” solitary confinement as being “for a time period in excess of 15 consecutive days”.118 These parameters of 22 hours and 15 days are also used by a UN Special Rapporteur of the Human Rights Council,119 and the UK Supreme Court in the case of Bourgass.120
52.The Committee on the Rights of the Child said in 2016 that Young Offenders’ Institutions in the UK use solitary confinement on children, and recommended an immediate end to the practice.121 Similarly, the UK’s National Preventive Mechanism (‘NPM’),122 reported on YOIs and “identified practices amounting to solitary confinement outside formal isolation facilities”.123 The UK Government has repeatedly insisted that solitary confinement is not used for young people and children in the UK.124 Written evidence from the Ministry of Justice to this inquiry stated:
“It is our legal position that the published policies around segregation are compliant with human rights as they contain multi-layered procedural safeguards that as a package are sufficient to ensure that the policy is compliant with article 8 of the European Convention on Human Rights (namely, right to respect for private life). The guidance on segregation include an in-built system of reviews to ensure that continuing segregation remains necessary and proportionate.”125
53.Many commentators disagree with the Government’s assertion, including all of the witnesses who commented on this matter in evidence to this inquiry. The Howard League for Penal Reform wrote: “Calls to the Howard League legal team suggest that there are numerous instances where children are isolated for more than 22 hours a day, sometimes for days on end. The Howard League recorded over 40 such concerns on behalf of children in last 12 months leading up to March 2018.”126 The Children’s Rights Alliance for England told us that: “[T]he European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) was extremely critical of children being on a ‘separation list’ where they’re locked up alone in their cells for 23.5 hours a day.”127
54.We agree with the Government that the guidelines for separation in YOIs and STCs do not permit solitary confinement; and we do not suggest that any of the Ministers who have given these assurances would allow children to be intentionally placed into solitary confinement. There are supposed to be safeguards in place, and decisions to isolate a child in a YOI have to be reviewed after 72 hours, and then every 21 days.128 However, formal isolation of children in YOIs and other forms of separation in YOIs and STCs can sometimes ‘drift’ into situations of severe isolation, which may be prolonged, and which bring the risks associated with solitary confinement. As Professor Barry Goldson stated: “It is clear that practices of segregation and de facto solitary confinement of children and young people comprise enduring features of penal policy and practice.”129
55.Evidence over several years shows that incidents of separation can ‘drift’, so that children end up in what amounts to solitary confinement (at least 22 hours per day without meaningful contact) which may be prolonged (at least 15 days’ duration). This breach of children’s rights is not a policy decision by the Government, but it is within the power of Government to prevent it.
56.We recommend that every decision, or review of a decision, by YOIs to extend a period of separation beyond 72 hours is reported to the responsible Minister, on a monthly basis, who will certify the information and lay it before each House for publication. The information provided to the Minister should specifically highlight any separations that extend beyond 21 days. These figures should be simultaneously copied to the Independent Monitoring Board.
57.Case files provided by the Ministry of Justice gave details of children who were in isolation units for up to 100 days, for reasons including containment of extremely violent behaviour, observation to prevent self-harm, and self-isolation due to fear of harm by other children.130 In an October 2018 report, the Children’s Commissioner for England commented on this issue:
“… The Youth Custody Service has explained that within these figures there are some children who choose to self-isolate. We have also been told by YOI staff that some children do not want to engage in the normal regime or interact with their peers for various reasons: some do not feel safe, and others are acutely mentally unwell. The Commissioner is concerned that if a child chooses to self-isolate for long periods then the reasons for this should be investigated and appropriate support needs to be put in place. We hear from YOI staff of boys kept in isolation because they are too mentally unwell to associate with peers, yet are unable to access mental health beds.”131
58.We acknowledge that there are cases of children in custody who are so unwell, violent or afraid that it is difficult to know how to treat them. They should be moved to an institution that is equipped to look after them, or the institutions in which they reside should be reconfigured to enable them to adopt responses other than solitary confinement.
59.There are also examples of long-lasting separation in hospitals. The Royal College of Psychiatrists argued that these examples are different to those in YOIs, stating: “there are no circumstances when a young person in secure hospital will be detained in what could be described as solitary confinement”.132 We acknowledge that isolation for observation or treatment (for example, to prevent self-harm) is sometimes necessary, and that there are strict rules about isolation in hospitals. We are concerned, however, that children may have been kept in isolation for durations that are extreme and unjustifiable. For example, we heard about the case of Bethany, who had at that time been isolated for almost two years at a hospital. From the description provided by her father (summarised earlier in this report), her situation has all the characteristics of solitary confinement. The CQC has reported on an inspection of ATUs and CAMHS units at this hospital, concluding that the staff faced very challenging situations and that the hospital had “identified that they were not able to meet the care needs of three patients with very complex problems and behaviours”, and that it had not “facilitated independent reviews of patients in long term segregation in line with the Mental Health Act Code of Practice”.133
60.The CQC is also conducting a thematic review into restrictive practices in ATUs, which will report in March 2020.134 We asked the CQC for the reasons for this long timescale, and as part of our ongoing work on ATUs we will scrutinise the CQC’s interim report, due in May 2019, to see what actions can be taken at that stage. We received assurances from the CQC that “if we have concerns about [patients’] welfare we will escalate those concerns immediately”.135
61.The use of separation from human contact for medical observation and treatment must be weighed against the risks of distress and harm to the child. Some cases in hospitals amount to solitary confinement, which is not compliant with human rights standards for children. We recommend that the use of separation in hospitals be more rigorously regulated. Each institution in the health sector must report data on extension of separations to the responsible Minister on a monthly basis, who will certify the information and lay it before each House for publication.
85 UNCRC, General Comment No 10 (2007) on Children’s rights in juvenile justice, April 2007, paragraph 89
86 Sotiropoulou v Greece, No. 40225/02, 2007
87 Mental Health Act Code of Practice, 26.103
88 Rule 49 and Rule 51 of YOI Rules and Prison Service order (PSO)
93 This particular event occurred when William was aged 19, in the 18–21 wing of a YOI, but the insights he offered are directly relevant to the impact of restraint in children’s YOIs.
96 Shalev, S. and Edgar, K. for the Prison Reform Trust, Deep Custody: Segregation units and Close Supervision Centres in England and Wales, 2016
104 Associate Development Solutions and the Children’s Commissioner for England, Isolation and Solitary Confinement of Children in the English Youth Justice Secure Estate, 2015
105 NHS England, Mental Health Bulletin: 2017–18 Annual Report, 2018, Reference Table 7.1. All of these figures were around 5–10% higher than in 2016–17, but it is not clear whether these is a genuine change, given the uncertainty in the data. Data was not available for inclusion in NHS England’s reports for earlier years.
106 NHS Digital, Learning Disability Services Monthly Statistics, August 2018. This dataset covers ATUs and mental health units, so there is overlap with the figures above; it does not include autistic people; and it is not split into adults and children. The number of people with autism or learning disabilities held in inpatient units in England was around 2,350 in October 2018, of whom around 250 were children (compared to 110 in March 2015)
107 HMIP, Children in custody 2015–16: An analysis of 12–18 year olds’ perceptions of their experiences in STCs and YOIs, 2016; HMIP, Children in custody 2016–17: An analysis of 12–18 year olds’ perceptions of their experiences in STCs and YOIs, 2017; and HMIP, Children in custody 2017–18: An analysis of 12–18 year olds’ perceptions of their experiences in STCs and YOIs, 2019.
109 In STCs (and indeed also in SCHs), separation is used as a ‘time-out’ after an incident; only two episodes in STCs exceeded a few hours.
110 Children’s Commissioner for England, A report on the use of segregation in youth custody in England, 2018
111 The average YOI population is 650, but due to shorter sentences more than 650 children were in custody at some point in that six-month period, so the figure of 314 is not directly comparable with the 650.
112 Youth Justice Statistics 2017–18, section 8.5
113 The figure of 100 children is the average affected, based on numbers affected in each month.
114 Children in custody 2017–18: An analysis of 12–18 year olds’ perceptions of their experiences in STCs and YOIs (Her Majesty’s Inspectorate of Prisons, 2019)
115 Children in custody 2015–16: An analysis of 12–18 year olds’ perceptions of their experiences in STCs and YOIs (Her Majesty’s Inspectorate of Prisons, 2016)
116 Istanbul Statement on the Use and Effects of Solitary Confinement 9 December 2007 at p 1
117 UN Standard Minimum Rules for the Treatment of Prisoners (“Mandela Rules”), General Assembly (Res 70/175, 17 December 2015), Rule 44
118 UN Standard Minimum Rules for the Treatment of Prisoners (“Mandela Rules”), General Assembly (Res 70/175, 17 December 2015), Rule 44
119 Report submitted to the UN General Assembly in August 2011 by Juan E Méndez, the Special Rapporteur of the Human Rights Council on torture and other cruel, inhuman or degrading treatment, 2011, paras 25 and 26
120 R (on the application of Bourgass and another) (Appellants) v Secretary of State for Justice (Respondent), 2015, paras 1, 22, and 37
121 Committee on the Rights of the Child, Concluding observations on the fifth periodic report of the United Kingdom of Great Britain and Northern Ireland, 2016
122 The NMP is made up of bodies that monitor detention facilities in the UK and is coordinated by HM Inspectorate of Prisons (England and Wales), and has a duty to ensure that independent, preventative monitoring takes place at all places of detention, in order to fulfil the UK’s obligation under Article 11 of the Optional Protocol to the UN Convention against Torture (OPCAT).
123 NMP, Monitoring Places of Detention: Sixth Annual Report of the United Kingdom’s National Preventive Mechanism, 1 April 2014–31 March 2015, December 2015
128 Rule 49, as amended in the The Prison and Young Offender Institution (Amendment) Rules 2015 (SI 2015/1638)
130 These case files were provided to the Committee on the basis that they would remain confidential.
131 Children’s Commissioner for England, A report on the use of segregation in youth custody in England, 2018
133 Care Quality Commission, St Andrew’s Healthcare Adolescents Service Quality Report, February 2019
Published: 18 April 2019