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In considering the merits of this rule change, we need to go back a little in history. When the Youth Justice Board was set up in 1998, it was given responsibility for commissioning places for young people who needed to be detained in secure children’s homes, STCs and young offender institutions. It was not given responsibility for running these facilities, but it did set standards. One of the most difficult issues it certainly wrestled with when I was involved with it is this area of physical control and constraint. One of the long-standing problems has been that

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there are different systems in operation in the three establishments where the Youth Justice Board commissions places, but the board has no legal responsibility for physical control and constraint. The Home Office and the Home Secretary have continued to retain responsibility for PCC in secure training centres.

Rule 38 of the Secure Training Centre Rules, made in 1998, makes clear that young people can be restrained only in circumstances and using methods approved by the Home Secretary, not the Youth Justice Board. In practice, the Prison Service training college has continued to fulfil the Secretary of State’s function of training STC staff in methods of constraint approved by the Home Secretary on advice from the Home Office juvenile offender unit. We need to be clear where responsibility has lain in this area.

However, the STC rules do not explicitly permit STC staff to use reasonable force to maintain good order and discipline in STCs; nor do they allow the YJB to intervene in this area. This statutory instrument will allow the staff of STCs to use physical intervention as a last resort to maintain good order and keep staff and residents safe and secure. I believe it is reasonable to put that point beyond legal doubt so that STC staff can use physical restraint as a last resort to maintain order in establishments which, we have to recognise, have a substantial number of residents with a potential to engage in disorder that is dangerous to themselves and others. That is, after all, what the coroner presiding at the inquest into the tragic death of Adam Rickwood was seeking.

The question then for consideration is whether there are sufficient safeguards in place to deal with the potential misuse of that clarification of legal authority for staff. Here I take a different view from some people in the debate, although I have some continuing concerns that I wish to leave with my noble friend about the position in which the Youth Justice Board is left. Nothing in this specific change in this order makes it more or less likely that STC staff will abuse young people in STCs. Unjustified use of force by staff remains an assault. The evidence suggests that the use of restraint in STCs is, if anything, a little lower than in secure children’s homes.

In my view, nobody associated with the Youth Justice Board supports the use of force simply to secure compliance with instructions such as bedtimes. The YJB's own code of practice makes explicit that restraint should always be used as a last resort and never as punishment. Physical control and constraint has been developed specifically to avoid relying on pain to manage the behaviour of young people. However, there are extreme circumstances where staff are permitted to use a sharp burst of pain to the nose, thumb or rib where all other attempts to control a young person have failed and a serious situation is developing, or has developed, that has a material impact on the running of a centre.

I acknowledge that judging in particular instances whether reasonable force has been used can be difficult, but the central proposition under which staff are operating does not seem unreasonable. Sometimes staff are dealing with volatile situations where they

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could easily lose control if matters are allowed to escalate. Clarifying legally their ability to retain control is essential.

Let us reflect on the alternative, which is to allow the situation to get out of control and to have to call in the police or the Prison Service to put down a riot. That is the alternative unless we allow staff legally to use judgment in handling particular situations. I do not think that the alternative is a road down which any of us want to go, in the best interests of children.

However, I have some concerns that I ask my noble friend to consider with some urgency and report back on to Parliament. They relate to the legal accountability in the area of physical control and constraint. As I have said, the Youth Justice Board has no legal responsibility, but people seem to assume that it has. There are different arrangements for PCC in different establishments for which the Youth Justice Board contracts the services—secure children's homes, STCs and young offender institutions. The YJB has no clear legal responsibility in relation to PCC in those areas. It has used its general duty of care—wisely, in my view—as the legal basis on which to issue a code of practice.

However, its ability to ensure that staff are trained in what it regards as good practice is constrained by its legal position. That is not satisfactory and led to legal confusion in the tragic death of Gareth Myatt in April 2004 in an STC. The coroner’s inquest seems to have been wrongly informed by lawyers acting for the Government that responsibility for advising on physical constraint had been transferred to the Youth Justice Board. It has not. It has remained with the Home Secretary and is now still with the Secretary of State for Justice. It is a Minister and a department, not the arm’s length Youth Justice Board, who make the rules in this area. It is not a shared legal responsibility. It is my view that the Youth Justice Board has always been in an unenviable position in this area. That is why it has expressed its concern about that in the past.

I feel that I ought to say that in this House, because it is jolly difficult for the Youth Justice Board to say so itself. An urgent review by the Ministry of Justice is required to put the accountability for physical control and restraint, including methods and training of staff, in the three areas for which the YJB has contractual responsibilities, on a much clearer legal basis. Personally, I have some reservations about the nose technique, which has been mentioned. There are certainly issues about the variable systems of training for staff working in those three different types of facilities, but we should not just concentrate on STCs if we want to improve training of staff looking after many vulnerable children.

I ask my noble friend to consider an urgent review with his ministerial colleagues. Subject to that consideration, I support the order as a proper way to protect staff in STCs in the difficult job that they do on behalf of us all.

Lord Dearing: My Lords, I shall make a one-minute speech. When the inquiry takes place, will it look into the whole principle of the use of distraction

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techniques as something that a civilised society uses on our young people? I understand the need for restraint, but deliberately inflicting pain and suffering is an issue of principle that an inquiry should consider.

Baroness Murphy: My Lords, I support the noble Lord, Lord Carlile, in his Prayer to annul. Much of what I would have said has already been set out splendidly by him, my noble friend Lady Stern and others, so I will confine myself to one or two points.

The amount of restraint used in secure training centres is quite astonishing. If, as the Government hope, the techniques of restraint are used only as a last resort, it seems extraordinary that they are used so often. It is most people’s experience when dealing with children of this kind that they are indeed the most troubled and troublesome, and that almost all of them have profound long-term mental difficulties. Many, as we know, will go on to self-harm for several years and many will remain in institutions for the rest of their lives. They form a profoundly disturbed group.

As the noble Lord, Lord Carlile, said, we have stakeholder comments in the briefing from the Youth Justice Board about when such techniques might be used. He did not give us an example, but I hope that he will allow me to quote one provided for us in its notes on 27 June:

restraint—

So we progress ineluctably from a simple refusal to go to bed to a violent act, albeit sanctioned, in the name of prevention when clearly there are a number of other ways in which someone might be able to intervene in such a situation. That strikes me as one of the worst circumstances in which to use techniques of this kind.

If we look at the figures for the use of restraint in the four centres, there is a threefold difference between the use of restraint in one centre and its use in another. There are three possible reasons for this. The first is that incidents are being recorded in different ways. However, the guidance on how to record incidents suggests that that is unlikely. The second possibility is that there may be a different range of children with different problems in each of the four units. That is a real issue and the Minister may be able to tell me whether that is the case. However, I suspect, of course, that one unit is better staffed than another, has better training and leadership from its managers, and has staff who have learnt how to use their personal resources to control situations by spotting a potentially difficult one coming up and defusing it, thereby diverting the potential energy elsewhere.

I say to the noble Lord, Lord Warner, that I do not want to diminish the difficulties faced by the staff in

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these units, or the challenges that these children pose for them. None of us knows how to deal adequately with these children. We have maintained a pretty old-fashioned approach. There has been no real shift in our understanding of what are the best techniques to handle difficult and violent children from what it was 20 or 30 years ago. We know that the more use of violence there is, the more it will be perpetrated in further acts of violence as the child grows up. As was said by the right reverend Prelate, violence begets violence. Too many of these young people will go on to live lives where their only relationship with other people is exercised through further violent exchanges.

I hope that we will look seriously at reviewing the use of these techniques, and consider the point made by my noble friend Lord Dearing about the totally unacceptable and dangerous acts which are both difficult and dangerous for the person perpetrating them but far worse for the children on the receiving end, who are at serious risk of death from asphyxia or cardiac arrest, particularly when they are taking mental health medication. Further, we should look rather more closely at what research there is into how to manage these children. I suspect that we are putting them into secure training centres of the kind we have at the moment, into our criminal justice system youth offending institutions, and even local authority homes because we really do not know what to do with them. Let us take a closer look at this.

6 pm

Baroness Linklater of Butterstone: My Lords, since STCs were first created we have witnessed the resolute determination of the Government to expand child prisons, via the private sector, despite strong opposition from many quarters, including in your Lordships’ House. Even by the crudest measurement of results, they have failed to deliver—reoffending is over 80 per cent—but it is the day-to-day management of the children which is the chief cause of our deep concern today. Before 1997 there were no STCs, but these children were contained, managed, treated and helped in secure children’s homes, psychiatric units and other facilities in the community. Yet, with a similar clientele, Scotland has found it neither necessary nor desirable to go down this route—thank God.

It was confirmed in a technical amendment during the Offender Management Bill that STCs are indeed classified as prisons, something that has been unclear in many minds when the YJB commissions places at both STCs and secure children’s homes for young offenders; of course, the latter are emphatically not prisons. The Bill also clarifies government policy that imprisonment is indeed the proper punishment for even our youngest, most difficult and troubled children, with a regime that will physically restrain them in the disturbing ways we are discussing. I take the view, along with most of the distinguished groups and organisations cited by my noble friend Lord Carlile, that penal custody is inappropriate and wrong for children.

The profile of the children themselves, who are as young as 12, is very important. The most telling phrase which has been used to describe this group is

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that they have a “disproportionate experience of loss”. This includes, literally, loss through bereavement or loss of family ties, loss of education, loss of mental health and well-being, loss of any place in the world, and loss of love. To have lost or never to have had such things in life is a terrible thing. There is overwhelming evidence that these children have a disproportionate experience of abuse—physical, emotional, sexual—and neglect.

What flows from this, inevitably, is that such children are extremely difficult, challenging and disturbed. Some are capable of terrible things and displaying truly awful behaviour, sometimes to themselves and sometimes to others. Skill and experience in the management of these children—a hugely difficult task—is essential; it is important that that skill and experience is present. They are crucially and centrally still children—with all the needs and vulnerabilities, as well as the rights, of children—to whom we have a particular duty of care, both legal and moral.

Yet we have managed to create regimes in which not only are they being forcibly restrained but where the process for restraint can and does damage them, not only emotionally—as we have heard, one child, Adam Rickwood, committed suicide following restraint—but also physically, including broken bones. On one occasion, tragically, a death resulted from a restraint called the double-seated embrace. I agree with Ms Sally Keeble in the other place, who was mentioned by the noble Baroness, Lady Stern, when she referred to a lack of sense of horror on the part of officialdom at the gruesome death of a boy and the catalogue of systemic failures on the part of various bodies, such as the YJB and the Home Office, which have taken years to come to light in an official inquiry.

Tonight we are looking at the use of restraint and the extension of its permitted use from the specifically defined purposes of preventing harm, either to the child or to others, escaping, damaging property or inciting others to do the same, to include good order and discipline. PCC—physical control in care—includes restraints called distraction techniques, involving the nose, wrist or thumb, which can cause pain, sometimes bruising and nose bleeds. My noble friend Lord Carlile was absolutely right to say in his important report on restraint, segregation and strip-searching of children in STCs that such techniques should never be used to enforce compliance or as punishment. The fact that such techniques have been used over 3,000 times in one year demonstrates that they are commonplace and used in ways specifically ruled out by my noble friend Lord Carlile. A culture of restraint has developed. To allow the vague criterion of “good order and discipline”—swearing or refusing to go to class are examples that have been given—would be to condone and endorse restraint unacceptably.

I have visited three of the four STCs, where I was welcomed and met staff whose commitment and good intentions were clear. I have even had the double-seated embrace—the one which killed Gareth Myatt—demonstrated to me. These are indeed places of imprisonment and, as the figures show, places of punishment—not only by virtue of being in prison but because of the way in which the children are managed

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when they misbehave. I have learnt only recently that metal handcuffs are used in STCs although they are not used in prisons.

It is the underlying ethos, the management styles—starting with the language of “trainees” and “custody officers”—and the perception of roles and duties that demonstrate a failure to understand the extremes of damage and need of the children in this care. I have mentioned before in the House that there was once a chance to earn a teddy bear for good behaviour—itself a graphic little detail—but that has since been withdrawn at Medway. The minimal training is totally inadequate to meet the huge challenges of dealing with incidents in these STCs except, as so often, through force and inflicting pain. There is the lack of opportunity properly to review an incident with the child, the failure of the monitoring process or proper reporting and, finally, even the inspection process is through CSCI, which knows all about children’s homes but not so much about prisons.

It need not be like this. At a secure children’s home in Scotland, St Mary’s Kenmure, whose clientele is exactly the same as those in the STCs, the ethos, management styles, skills and philosophy are very different. A crucial difference is the belief that the size of the place is important and should not be more than around 30 to 40 at most—half that of most of the STCs. All the large secure homes in Scotland are now closed. This is closely linked to the belief in the necessity of all the staff to really know and have a strong professional relationship with the children. For this, the whole environment must be small. To have a large place split into separate units is not the same and does not achieve the same thing.

Part of the aim of the regime and the relationships is to bring the children to the point where they can start to control their own behaviour. The development of self-belief in the children grows from the understanding that the staff actually believe in them. From that comes the possibility of change and the child wanting to change. This is not just good thoughts and thinking, but in that place a reality. It is a different world from that of the STC. The idea of restraining children using painful techniques is anathema. That is not to deny that there are sometimes challenging and alarming incidents which the staff have to deal with, chiefly using TCI—therapeutic crisis intervention—techniques, a process of de-escalation, talking wherever possible through the event and always, after any incident, a restorative process of discussion. Importantly, the debriefing is also there for the staff. Training is a pre-condition with care staff, as you might expect. Care staff have a minimum of an SVQ or an HNC, the teachers have degrees and all staff have twice-yearly training and refresher courses. This is an acknowledgement of the challenging nature of the task of working with these children and of the skills required. By 2010 St Mary’s Kenmure will be registered with the Care Commission, which also requires all staff to be properly qualified.

If we believe in our duties to children and in the possibilities for change and if we believe that it is wrong to harm any child—even our most difficult—while we work towards change, then it is imperative

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that we support my noble friend Lord Carlile against the unacceptable move to make it easier to do more harm under the pretext of good order and discipline. I would definitely welcome a review.

The Lord Bishop of Worcester: My Lords, I hope that the noble Lord, Lord Carlile, will not be embarrassed by an excess of prelatical support. There is something very attractive to Bishops about a Lord temporal proposing a Prayer, but that is not my reason for standing up.

First, I reassure the Minister and the noble Lord, Lord Warner, that this is not a debate between people who think that looking after disturbed young people is easy and those who think it difficult. This is not a debate involving people who think that they could do it better. I am among those in this House who realise that such a task would be very defeating and would provoke emotions in myself that might well lead to the unacceptable use of violence, were I not myself restrained by a regime over which Parliament ultimately has jurisdiction. Secondly, the House should acknowledge an enormous debt to the noble Lord, Lord Carlile, for his consistency and measured raising of the issues. His report was probably the most difficult read I ever had while bishop to Her Majesty’s Prisons. I could not manage it at a sitting, frankly finding it too distressing. However, if that was one of the most difficult things to happen at that time, one of the most hopeful was the restructuring of Ministries, and the appointment of the Minister who will answer this evening, as real opportunities for opening up a different direction and a view of justice that is fundamentally hopeful.

Also, in the context of this debate, the use of “clarification” about these rules is positively Orwellian. I do not wish clarification—which is certainly necessary—to be used as a cover. Like all noble Lords, I will be listening with great care to what the Minister says about what further clarification—real clarification of boundaries—he will offer as reassurance to the House. I understand that it will be for the noble Lord, Lord Carlile, to decide whether those government responses are adequate to the Prayer that he is proposing, or whether he needs to press the matter. However, I am pretty disquieted even by the thought that these rules will be on the statute book, because one of the things that statutory frameworks do is to create ethos, climates of opinion or cultures. While it may be true that you can clarify those rules, say what you really meant and produce boundaries around them, the fact is that we shall have in this country rules that say this kind of thing about the possibility of using physical restraint where necessary for the purpose of restoring order. That not only introduces an element of subjectivity into the lives of these young people, but opens the way for “rogue officers” to feel that there is a sneaking level of public support for them doing what we believe to be unacceptable.

The report of the noble Lord, Lord Carlile, gives us ample information. His speech this evening and those of other noble Lords and the noble Baroness, Lady Stern, give us ample evidence. I am not sure what a further review can be expected to unearth—I

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would be happiest if these rules were annulled. If that is not to be, I hope that the reassurances offered by the Minister will be sufficiently strong really to reassure.


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