Month: May 2016

Children and Social Work Bill – gains and serious threats

New legislation concerning children’s social care rights was introduced into Parliament last week. Debate and scrutiny starts in the Lords on 14 June.

Many aspects of the Children and Social Work Bill, once enacted, will have a direct effect on children living in institutions, and care leavers. Below we summarise key elements, and highlight the opportunities and serious threats for children’s social care rights.

Clause 15 empowers children’s services to request 6-year breaks from Children Act 1989 duties, which is the greatest threat to children’s rights in the Bill (see below).

Corporate parenting principles
This part of the Bill groups in one place existing duties towards looked after children and young people, and creates some new ones. It states:

A local authority in England must, in carrying out functions in relation [to looked after children and care leavers to age 25], have regard to the need—

(a) to act in the best interests, and promote the health and well-being, of those children and young people;
Section 22(3) of the Children Act 1989 already requires local authorities to safeguard and promote the welfare of any child they are looking after.

(b) to encourage those children and young people to express their views, wishes and feelings;
(c) to take into account the views, wishes and feelings of those children and young people;
Section 22(4) of the Children Act 1989 already requires local authorities to ascertain and give due consideration to the child’s wishes and feelings. This is a stronger duty than these two principles in the 2016 Bill.

(d) to help those children and young people gain access to, and make the best use of, services provided by the local authority and its relevant partners;
Section 22(3)(b) of the Children Act 1989 already requires local authorities “to make such use of services available for children cared for by their own parents as appears to the authority reasonable in his case”. In addition, care planning regulations require local authorities to assess children’s “needs for services to achieve or maintain a reasonable standard of health or development”, and they must prepare a care plan setting out how these needs will be met. Moreover, Regulation 5 of the Children’s Homes (England) Regulations 2015 requires cross-agency co-operation to ensure children’s needs are met.

(e) to promote high aspirations, and seek to secure the best outcomes, for those children and young people;
This is not currently in legislation.

(f) for those children and young people to be safe, and for stability in their home lives, relationships and education or work;
Section 22(3A) of the Children Act 1989 (as amended by the Children Act 2004) already requires local authorities to promote the educational achievement of children they are looking after; and the Children and Families Act 2014 imposes a duty on local authorities to appoint at least one person to ensure that duty is discharged.

(g) to prepare those children and young people for adulthood and independent living.
The Children Act 1989 (as amended by the Children (Leaving Care) Act 2000) already requires specific actions by local authorities, including providing practical assistance, when this is necessary, to safeguard and promote the welfare of a care leaver. However, the 2016 Bill extends the right to advice and assistance from 21 to 25 years. Emotional support is not mentioned specifically in existing legislation, or in this new Bill.

Other conspicuous omissions from the corporate parenting principles include: the importance of keeping siblings together and facilitating family contact, whenever possible; supporting children’s friendships and social activities; and any mention of happiness, feeling loved and recovery from harm (see care plan provisions below). There is also no corresponding general duty on the Secretary of State, like there is in other policy areas, including education, health and public libraries for example.

Care leaver entitlements
This part of the Bill requires local authorities to publish information to care leavers about their services. Writing in the Sunday Times, David Cameron described this as a covenant, a promise that would set out young people’s entitlements: the Bill uses the dry market terminology of a “local offer”.

The duty to inform care leavers of services already exists within Paragraph 1, Schedule 2 of the Children Act 1989 (as amended by the Children (Leaving Care) Act 2000). What is new is that the range of services that may assist care leavers, and therefore should be promoted, are listed in the Bill as those relating to: (a) health and well-being; (b) education and training; (c) employment; (d) accommodation; and (e) participation in society. Additionally, local authorities must consult care leavers before publishing such information. Health and well-being could invite much needed attention on young people’s emotional needs.

Advice and support for care leavers
This part of the Bill extends the duties of local authorities to assess the needs of care leavers, develop a pathway plan to meet these needs, and to provide advice and support up to the age of 25. This is a significant extension from the age of 21. However, the right to ‘stay put’ in a care placement is not extended to young people living in children’s homes. The Children and Families Act 2014 entitled young people in foster care to stay in their placements until the age of 21. This does not apply to those living in children’s homes, and the absence of any provision for this in the Bill is a fundamental flaw.

Promoting the educational achievement of children who were in care
This part of the Bill requires local authorities to provide advice and information to parents and schools in order to promote the educational achievement of children who were formerly looked after, including those who have been adopted.

Duties of Academies
The Bill introduces a duty on Academies to appoint a dedicated member of staff to promote the educational achievement of children in care, and those who were once in care including adopted children. A similar duty has applied to other maintained schools since 2008.

Permanence features of care plans
Parliament passed legislation in 2014 that required courts to consider the local authority’s permanence plans for a child, during care plan proceedings. Now, the 2016 Bill sets out the required aspects of a permanence plan, including: the impact of any harm the child has suffered, or was likely to have suffered; the current and future needs of the child, including those arising from past harm; and the way in which the long-term plan for the child would meet these current and future needs. Missing from this list is the child’s views, wishes and feelings.

Adoption and the child’s relationships
Adoption legislation requires the court or adoption agency to consider the relationships children have, specifically mentioning legal relationships and relatives. The child’s mother and father are the only two relationships specifically defined as relatives, through more are implicitly recognised. The 2016 Bill extends this definition to include as a relative a prospective adopter with whom the child is living. This is a curious proposal, which existing legal relatives who are not mentioned in legislation, such as grandparents, could find very insulting and upsetting.

Ministers could have provided duties to consider the child’s relationship with prospective adopters without defining them as relatives. No provision has been made in this part of the Bill for due consideration to be given to children’s views, wishes and feelings about the relationships they value and wish to preserve. (Adoption law requires the court or adoption agency to have regard to the child’s ascertainable wishes and feelings about a decision relating to his or her adoption, though a specific duty in respect of relationships would strengthen this).

Child Safeguarding Practice Review Panel
This part of the Bill empowers central government to establish a national body to commission reviews into serious child safeguarding cases which are complex or raise issues of national importance. Ministers will appoint the Panel and central government will commission reviewers.

In June 2013, Michael Gove, as Education Secretary, established a national Serious Case Review Panel. None of its four members has previously worked in statutory child protection roles.

A serious child safeguarding case is defined as one where abuse or neglect is known or suspected by a local authority or another person working with children (voluntary organisations are not specifically mentioned) and the child has died or been seriously harmed. Serious harm includes “serious or long-term impairment of mental health or intellectual, emotional, social or behavioural development”. Physical injuries are not included, which could exclude children in institutions who have been harmed by restraint, for example.

Serious case reviews, with equivalent remits, are presently the duty of Local Safeguarding Children Boards (LSCBs), statutory bodies created by the Children Act 2004. Before these, local authorities operated Area Child Protection Committees. The 2016 Bill does not indicate the types of child deaths that would be considered to raise complex issues or matters of national importance, inevitably raising questions about the future role of LSCBs.

Statutory safeguarding guidance has required since 2010 that serious case reviews be held whenever a child dies in custody. Article 39 believes the 2016 Bill should require an automatic safeguarding review of the death of a child in any institutional setting, including custody, hospital and children’s homes, where there were concerns about the child’s welfare before his or her death.

Power to remove children’s social care rights for a period of up to six years

Clause 15 of the 2016 Bill is headed “Powers to test different ways of working”, and empowers local authorities to apply to the Education Secretary to surrender or change their obligations to children and families under social care legislation. Where a local authority is subject to direct control, or any of its functions are being undertaken by a separate body, the local authority has no specified right to be consulted, or to object to such a move.

Agreements for the radical removal of children’s social care rights will be made through the process of either negative or affirmative resolution in Parliament, and could last for up to six years. The negative resolution procedure allows legislation to be passed by Parliament without any debate or voting, unless objections are made. The affirmative process is slightly better, but still does not allow changes to be made to the regulations.

Local authorities must consult their LSCB prior to seeking these fundamental changes. There is no duty to consult local children, care leavers or families or bodies such as Children in Care Councils. The Education Secretary must, before agreeing to regulations, consult the Children’s Commissioner and Ofsted.

The Bill’s Explanatory Notes makes clear the enormity of these changes. Social care legislation is defined as:

“Children’s social care legislation includes all the enactments which govern how local authorities safeguard and promote the welfare of children and those leaving care, for example the Children Act 1989 (“the 1989 Act”) the Adoption and Children Act 2002 and the Children Act 2004.”

Similar powers to suspend education law requirements were passed in 2002.

Other parts of the Bill relate to social worker regulation and mental health social work training courses.

MEDWAY SECURE TRAINING CENTRE MUST CLOSE

A damning report into G4S-run Medway secure training centre is published today, setting out in extensive detail the abject failure of a wide range of organisations, chief among them G4S and the Youth Justice Board (YJB).

The 61-page report brings into the public domain substantial new evidence of child abuse at Medway, and the ineptitude of agencies charged with monitoring, overseeing and advocating for the rights of children detained there. It was written by an Independent Improvement Board, established by Justice Secretary, Michael Gove, at the end of January. Specific findings include:

  • No single body has taken responsibility for safeguarding children at Medway secure training centre. The report describes a chain of statutory bodies, including the YJB and the Office of Children’s Commissioner, falsely believing children were safe because other agencies had not raised the alarm
  • Across a 7-year-period, prior to 2016, the Youth Justice Board received 35 separate letters of concern about children’s treatment in the three G4S secure training centres (Medway, Oakhill and Rainsbrook). Yet there was “very little evidence that a serious attempt had been made [by the YJB] to organise the accumulated evidence or analyse the data”
  • The YJB Monitor who had a legal duty to report concerns to the Justice Secretary was located by G4S in an office where she could not see children when they were in the outdoor space. G4S also prohibited the Monitor from viewing CCTV, which would show instances of restraint for example, claiming incorrectly this would breach data protection. Children interviewed as part of this independent review had no idea of the role of the Monitor
  • The independent advocacy service, managed by the children’s charity Barnardo’s, was not valued by children or rated by the Improvement Board. Advocacy services for children in residential settings were first established in the wake of the children’s homes scandals of the 1980s, and are meant to stand by children’s side at all times and robustly challenge abuses of their rights
  • Children who were seen to be self-harming were watched by custody officers even when they were in the shower. They were locked in bare cells, stripped of all possessions and made to wear ‘anti-suicide clothing’ – penal regimes that have been criticised for decades
  • Between February and October 2015, 14 child protection referrals were made to Medway Council. Not one of these was found to be substantiated. Children who reported abuse were sent letters by the Council, which dismissed their concerns citing insufficient CCTV evidence. For example, one child was told: “on seeing the CCTV we could not see much due to where the cameras were situated and therefore could not evidence what you said happened”. Another child was informed: “we have therefore concluded that the allegation of you being hurt by a member of staff is unsubstantiated, which means that we do not have any proof to evidence that the staff member had hurt you and we cannot tell either way what really happened”. The report underlines the silencing effect of such an approach, which does not reflect child protection practice in community settings
  • One child protection incident apparently involved seven members of Medway staff, yet the Independent Improvement Board could find “no paperwork”
  • Standard punishments included not allowing children to eat in the dining room, leaving them to eat meals alone in their locked cells
  • One of the responses of G4S to the BBC Panorama programme was to lobby the YJB for changes to restraint rules. This is exactly what the company did in 2006, in response to the restraint death of 15 year-old Gareth Myatt, who was held down in a seated position by three G4S officers who ignored his cries he couldn’t breathe. The YJB supported the multinational, the restraint rules were changed in 2007, and then they were quashed by the Court of Appeal in 2008 – because the changes risked children suffering serious human rights violations.

Article 39’s Director, Carolyne Willow, had a one-to-one meeting with a member of the Improvement Board in February. She says:

“This report dignifies what children, families, the courts and campaigners have been saying for years. Medway secure training centre is unsafe and damaging, and other institutions with the same penal culture are similarly injurious to children. The Government’s interim response, to appoint a prison governor to run the centre, falls well short of the wisdom, knowledge and child-centredness shown by the Improvement Board. Medway must be closed; a serious case review established so that agencies can work out why they failed children; and coercive and controlling institutions rejected by all political parties from this point forward. This could be the watershed moment we have all been dreaming of.”

It’s been 122 days since the BBC Panorama’s exposé of physical and emotional abuse in G4S-run Medway secure training centre. The programme, ‘Teenage prison. Abuse exposed’ was broadcast on 11 January 2016. That same day, inspectors from Her Majesty’s Inspectorate of Prisons and Ofsted visited the child prison, interviewed 20 children, and their advice to the Justice Secretary was published on 26 January. The inspectorates advised the Government to immediately impose independent oversight of the centre, make officers wear body cameras and to establish “an enquiry into the failings at Medway and the implications of this for the wider youth justice system”. The Justice Secretary announced the Medway Independent Improvement Board that same day and, nearly six weeks since it submitted its report to the Minister, its findings and recommendations, and the Government’s response, have been published.

Government response to the Improvement Board’s Report here.

MTCnovo begins running UK child jail

MTCnovo takes over the running of Rainsbrook secure training centre, in Northamptonshire, today (5 May). This is a prison for children aged 12 to 17 years.

The contract to run Rainsbrook was formerly held by the multinational G4S, which ran the prison from 1999.

In April 2004, 15 year-old Gareth Myatt died after being restrained in a seated position; the three G4S custody officers ignored his cries that he couldn’t breathe. He was admitted to Rainsbrook on a Friday and died the following Monday. During the inquest into Gareth’s death, it was discovered that G4S restraint trainers had nicknames such as Clubber, Mauler, Crusher and Breaker.

Last year, three inspectorates issued a damning report on the centre. Their criticisms included children being subject to degrading treatment, and racism and drug-taking among G4S officers. A child who suffered a broken bone during restraint was denied hospital treatment for 15 hours. Despite the intervention of Sir Martin Narey, who was then a G4S consultant and undertook a separate review of the centre, and praised its care of children, the multinational lost the contract last autumn.

This will be MTCnovo’s first contract to run a prison in the UK. Carolyne Willow, Article 39’s Director, says:

“It is simply mind-boggling that the government has transferred the care of deeply vulnerable children from a multinational with a sinking reputation, to a company that appears to have no experience at all in looking after children in a residential setting. It is to be assumed that MTC’s history of running prisons in the US clinched the contract for MTCnovo. Yet human rights campaigners there have highlighted a catalogue of concerns and, in any case, expertise in child care should trump being able to hold children in captivity.”

MTCnovo is a profit-making company, formed through a partnership between the US-based firm MTC and several UK private and voluntary organisations. MTC itself has more than 60 contracts to run prisons, education, health care and probation – mostly in the US, but also in Egypt and the UK. The company has been subject to a great deal of criticism in the US for its failure to protect prisoners.

In June 2015, a court continued a legal order which means the Walnut Grove correctional facility in Mississippi will be under judicial supervision until 2017. Although MTC was not in charge when the first order was issued, three years after it took control of the prison the court found “ongoing violations”:

“While giving due credit to Defendants for the significant improvements made at Walnut Grove, the Court nonetheless finds that current and ongoing violations of the Eighth Amendment exist at the facility. In order to adhere to its constitutional duty to the inmates, the Court cannot ignore the persistent threat to inmate safety.”

Back in November 2015, together with the Howard League for Penal Reform and INQUEST, Article 39 wrote to the Chair of the Youth Justice Board, Lord McNally. We expressed our concern that MTC is under judicial supervision in respect of Walnut Grove correctional facility, and highlighted other serious allegations of abuse, neglect and failure to protect.

Article 39 will continue to monitor Rainsbrook secure training centre, though this will be impeded by the exclusion of private companies from the Freedom of Information Act 2000.

Read our letter to Lord McNally, and the response from Lin Hinnigan, the Youth Justice Board’s Chief Executive.

Children unable to breathe during restraint

Two reports obtained by Article 39 reveal there were 119 restraints in child prisons which compromised children’s breathing, or led to them being seriously injured, between 2013 and 2015.

It took 11 months for the Ministry of Justice to hand over the 2014/15 report, which was first requested in May 2015. A version of the report was given to us in December 2015, but virtually all of the contents were redacted. We complained to the Information Commissioner and, after further delay, the report was given to us last month. It shows that, between 1 April 2014 and 31 March 2015:

  • There were 65 incidents in six prisons (two juvenile young offender institutions and four secure training centres) where a child’s breathing was compromised, or they were seriously injured, during restraint
  • G4S-run Rainsbrook secure training centre had the highest number of incidents – 20 or 31% of the total
  • G4S-run Medway secure training centre had the second highest – 16 incidents (25%)
  • G4S-run Oakhill secure training centre had the third highest of the six prisons – 15 (23%)
  • The other three prisons had a total of 14 incidents (two of these, Hassockfield secure training centre and Hindley young offender institution, stopped detaining children in January and February 2015 respectively).

Of the 65 incidents, 71 warning signs and symptoms were recorded: 19 breathing difficulties; 18 occasions when a child complained  of being unable to breathe; 4 serious physical injuries; 6 incidents when a child vomited whilst being restrained; 8 petechial rash (haemorrhages); 11 incidents when a child lost consciousness or suffered reduced consciousness; and 5 incidents were listed as “other”.

In all of the incidents where a child suffered breathing difficulties and a petechial rash was observed, the head hold was used. The report does not state where the rashes were present: eye and face petechial are linked with asphyxial deaths. NICE clininal guidelines indicate that petechia should be suspected as child abuse if not associated with a medical condition or there is not a suitable explanation; and that such a rash on a child’s face, head or neck could indicate attempted strangulation and suffocation.

In one of the emergencies included in the 2014/15 report, a child was held in a seated hold in Rainsbrook. The child vomited. Notes in the report state the restraint was “prolonged” and “The handcuffs should have been applied much earlier” and there was no single person supervising the restraint (the role was changed between staff “several times”).

In another restraint in Rainsbrook, a child was reported to have “lost or reduced consciousness”. The notes refer to staff being “coached on application of head hold and risks to YP surrounding the use of arm across the throat”.

In another restraint in Rainsbrook, the recommendations include staff being told about “the Laws of use of force and its justification… and to be reminded if a young person verbalises they cannot breathe to ‘check and adjust’ as a minimum response”.

The report shows some children continue to be restrained on the floor, on their front or on their back, in breach of policy.

Large parts of the report summarising each incident, together with recommendations of the Behaviour Management and Restraint Governance Board in the National Offender Management Service, are redacted. In 20 of the 65 incidents, the Board gave no recommendations – which suggests it believes nothing could have been done to prevent the serious harm suffered by children.

The 2014/15 report does not state what the four serious injuries were but observes that one resulted from the “misapplication” of restraint and “a disregard by the staff member to respond to the young persons symptoms”, and another was investigated.

The shortest child to suffer breathing difficulties or a serious injury was 1.5m tall – less than five foot.

Serious incidents continued to take place in a child’s cell or “off camera”, in breach of policy.

The report shows Medway to have the highest rate of breathing warning signs or injuries as a proportion of restraints: 7% of restraints led to breathing difficulties or serious injuries. Next came Rainsbrook at 5%; then Oakhill at 4%; then Hindley at 3%; then Wetherby young offender institution at 1%; and, finally, Hassockfield at 0.8%.

The 2013/14 report, released to Article 39 last year, shows:

  • There were 54 serious injuries and warning signs that year
  • 48% of these serious incidents concerned children’s breathing (13 breathing difficulties and 13 complaints of difficulties breathing); and a further 30% involved a petechial rash. The report notes, “Petechial Rash and breathing difficulties constituted 78% of the [serious incidents]. This points towards a restriction of the mechanics of breathing to varying degrees”
  • Two incidents involved the child “appearing to lose consciousness”; both of these children had asthma. One child vomited after being given his/her inhaler “under restraint”
  • 7% of the incidents involved a child vomiting whilst being restrained: government guidelines state this is a medical emergency
  • Children suffered fractures whilst being restrained on four separate occasions
  • 39% of the 54 serious incidents occurred in Rainsbrook secure training centre, which was at that time run by G4S.

The Ministry of Justice report states, “The incidents that cause most concern are those where there is no camera coverage”.

Guardian news story here.

The Ministry of Justice does not appear to have made the reports available on its website.