Month: July 2020

Give children in care their rights back, urges Article 39

Article 39 children’s rights charity will ask the High Court to reinstate legal protections for children in care when its case is heard on 27 and 28 July. Article 39’s request for the final hearing to be expedited was successful, recognising the vulnerability of children in care and the scale of the changes forced through overnight.

Without any public consultation or time given for Parliamentary scrutiny, the Department for Education removed or diluted 65 safeguards for children in care in England by laying a statutory instrument on 23 April. The changes took effect the very next day.

An expiry date of 25 September was set but an Explanatory Memorandum published alongside the regulatory changes said this end-date would be revoked in the event of the public emergency continuing. Similarly, the government’s child’s rights impact assessment said the time-period would be extended “should the public health emergency or its impact last longer”.

When giving evidence before Parliament’s Education Select Committee, the Children’s Minister further indicated that deregulation during COVID-19 could be a testing ground for permanent ‘relaxations’ of legal duties. This led Article 39 and others to suspect the government was reviving earlier failed attempts to deregulate children’s social care – most notably in 2016/17 when it tried to pass legislation which would have allowed councils to opt out of their statutory duties for up to six years as trials for countrywide deregulation, although the government has denied this.

The radical deregulation affects social worker visits, six-monthly reviews of the care of looked after children, independent scrutiny of children’s homes and the safeguards in place for babies and children being considered for adoption. It also affects disabled children in short breaks and children placed outside their home areas.

Over 50 organisations and several hundred care experienced people, social workers and others within the children’s social care sector have been pressing for children’s rights to be immediately reinstated, as has the Children’s Commissioner for England.

It was against this background that a statement from Children’s Minister Vicky Ford MP was published on Parliament’s website last night, which states that the majority of the changes will expire at the end of September. The Minister is due to “immediately” amend non-statutory guidance urging local authorities not to implement the majority of the regulatory changes introduced through Statutory Instrument 445.

Carolyne Willow, Article 39’s Director, said:

“Of course it’s a relief that the government has confirmed that most of these radical changes won’t survive into October, but that doesn’t help children in care today who are desperately vulnerable and need to have their legal protections given back to them. The Children’s Minister says she is going to tell local authorities not to apply the majority of the regulatory changes made overnight in April, when what she should have done is withdrawn them altogether. If there are a few uncontentious, temporary legal changes which are genuinely required to safeguard and promote the welfare of children during the pandemic, then government has the power to take such action.

“The evidence we are submitting to the High Court shows that the ongoing risks to children of maintaining the regulatory changes are very serious indeed. Obviously so long as Statutory Instrument 445 remains in place, it is impossible to properly hold local authorities to account for failing to meet legal duties which existed before 24 April.”

Oliver Studdert, partner at Irwin Mitchell, said:

“These regulations were rushed through based solely on private discussions between central government and local authorities and service providers and the impact of the virus on them, without any consideration of the views, and importantly, the needs of the vulnerable children whose safeguards have been removed. There is nothing in yesterday’s statement from the Minister which provides justification for keeping these regulations in place until 25 September.”

Article 39’s claim has three separate grounds:

  • That the Department for Education failed to consult before making the changes to children’s legal protections;
  • That the Regulations are contrary to the objects and purpose of primary legislation, particularly the Children Act 1989;
  • That the Education Secretary, Gavin Williamson MP, breached his general duty to promote the well-being of children in England.

Notes

1.      Article 39 is represented by Oliver Studdert from Irwin Mitchell, Jenni Richards QC and Steve Broach from 39 Essex Chambers, and Khatija Hafesji from Monckton Chambers.

2.      Statutory Instrument 445 can be found here, and the Explanatory Memorandum here. The government’s Child’s Rights Impact Assessment is available here.

3.      Article 39’s list of 65 lost or diluted safeguards is here.

4.      The Parliamentary exchange on 22 April 2020 was between the Children’s Minister and a former Chair of the Local Government Association’s Children and Young People Board who is now a Conservative MP:

David Simmonds
: Minister, coming back to this point about statutory duties, a review by the Department has found that some of [the] statutory duties are leading to local authorities having to undertake activities that are not useful or purposeful, in particular, some of the reviews that are required under the statutory duties—help by foster carers, prospective adopters, the children in the care system—are found not to have improved their experience. Is the Department learning, and will it learn, from the suspension of any of those statutory duties, to see where it has exposed the fact that they were not leading to purposeful activity, with a view to dispensing with those statutory duties and freeing people up to do more useful things in future? 

Vicky Ford: That is exactly the point, David, about why we are laying in place the statutory instrument in order to implement flexibility on certain statutory duties. We are focused on giving that flexibility on the lower risk areas in order to make sure that the experts on the ground can be focused on what they need to do now.

5.    Yesterday’s Written Ministerial Statement can be found here.

6.   The High Court hearing on 27 and 28 July will be held remotely. Media representatives wishing to attend a remote hearing may contact the listing office at: administrativecourtoffice.listoffice@hmcts.x.gsi.gov.uk

Government changes law to legitimise abusive conditions in child prisons

Last Thursday (2 July), the Ministry of Justice amended the statutory rules for secure training centres to effectively try and legitimise the solitary confinement of children as young as 12. An accompanying memorandum states that children will have at least 1.5 hours out of their cells in each 24-hour period, instead of the usual 14. International rules define solitary confinement (for both adults and children) as 22 hours confined in a cell without meaningful human contact.

Children’s rights to family contact, education and work on their offending behaviour have all been diluted.

The expiry date for this removal and dilution of legal protections for children, although linked to COVID-19, is 25 March 2022.

UPDATE: We have today (7 July) submitted a Freedom of Information Act request for the following information:

  1. A copy of any children’s rights impact assessment produced for The Secure Training Centre (Coronavirus) (Amendment) Rules 2020.
  2. A copy of any equality impact assessment produced for The Secure Training Centre (Coronavirus) (Amendment) Rules 2020.
  3. Information produced and circulated to children detained in secure training centres which explains the changes arising from The Secure Training Centre (Coronavirus) (Amendment) Rules 2020.
  4. Information produced and circulated to parents of detained children, or local authorities when the child is looked after, which explains the changes arising from The Secure Training Centre (Coronavirus) (Amendment) Rules 2020.
  5. Any correspondence between the Ministry of Justice and G4S Care and Justice Services and MTC in respect of The Secure Training Centre (Coronavirus) (Amendment) Rules 2020.
  6. Any correspondence between the Ministry of Justice and Ofsted, Her Majesty’s Inspectorate of Prisons and the Care Quality Commission in respect of The Secure Training Centre (Coronavirus) (Amendment) Rules 2020.
  7. Any correspondence between the Ministry of Justice and the Youth Justice Board in respect of The Secure Training Centre (Coronavirus) (Amendment) Rules 2020.
  8. Any correspondence between the Ministry of Justice and the Children’s Commissioner for England in respect of The Secure Training Centre (Coronavirus) (Amendment) Rules 2020.

Carolyne Willow, Article 39’s Director, said:

“Children should not be held in any institution which cannot safeguard and promote their welfare. Keeping children locked up in prison cells for up to 22.5 hours a day is child abuse, there’s no question about that. It is psychologically and emotionally damaging for any child but especially cruel for those who have learning disabilities, mental health problems and for children who have endured earlier abuse and neglect.

“Predicting the enormous challenges which prisons would face in meeting children’s needs, shortly before lockdown began we wrote with other organisations to Ministers urging them to safely release children from custody wherever possible. Government did not take this protective action and now it has found it necessary to change the law to reduce the statutory obligations of the companies who run secure training centres. Yet again, when children needed the government to take a firm stance on safeguarding their rights, they have been abandoned and providers protected.”

Children as young as 12 can be detained in England’s two secure training centres. G4S Care and Justice Services manages Oakhill secure training centre in Milton Keynes, and MTC manages Rainsbrook secure training centre in Northamptonshire. In April 2020, there were 107 children detained in secure training centres.

During a COVID-19 transmission control period*:

  • The Justice Secretary has been empowered to suspend children’s right to weekly visits (of one hour), if he “considers that such a suspension is necessary as a result of the effects, or likely effects, of coronavirus on or in relation to trainees or the Secure Training Centre and proportionate to what is sought to be achieved”;
  • The duty on those running the secure training centres to ensure each child participates in education or training courses for at least 25 hours a week has been diluted to so far as reasonably practicable;
  • The duty on those running the secure training centres to provide education, training, physical education and programmes designed to tackle offending behaviour has been diluted to so far as is reasonably practicable.

There was no time given for Parliamentary scrutiny and there was no public consultation ahead of the changes. It does not appear the Children’s Commissioner for England, the statutory children’s rights body, was consulted. The accompanying Explanatory Memorandum states:

7.1 New operational guidelines, consistent with Public Health England advice, have been issued by the Youth Custody Service, HMPPS, to the Directors of the two STCs. This sets out a temporary minimum restricted regime for as long as appropriate during the coronavirus pandemic.

7.2 This temporary restricted regime is designed to prevent the spread of disease and ensure the safety and security of children and staff alike when operating with a workforce reduced by 25% through self-isolation. It is the minimum expected level of delivery during a secure estate alert level broadly comparable with Level 4 in the community. At all times STCs will be required to deliver the highest possible regime whilst still complying with health guidelines.

7.3 The temporary minimum restricted regime provides children with:
a)Reduced time out of room: At least 1½ hrs out of room a day (normally 14 hrs);
b)Reduced access to classroom education: There are opportunities to attend teacher-led sessions, in-room work and some children take part in independent study;
c)Dining on the residential units or in-room; and
d)Daily opportunities to access fresh air.

7.4 All rooms are equipped with en-suite facilities and a telephone on which additional credit has been added. Skype facilities are also available.

(The full Explanatory Memorandum can be read here)

*COVID-19 transmission control period: This is the period which starts when the Health Secretary makes a declaration that the incidence or transmission of coronavirus constitutes a serious and imminent threat to public health in England and ends when the declaration is revoked. The Health Secretary’s declaration was made on 10 February 2020.

Our 18 March 2020 letter to the Justice Secretary can be read here.