Children’s rights legal digest – October 2021

This year we are dedicating four issues of our children’s rights legal digest to landmark judgments that have strengthened the protection of children’s rights in England. This month we revisit a successful judicial review brought by the Howard League for Penal Reform which confirmed that children in custody are entitled to the protections guaranteed in the Children Act 1989. This judgment will be of relevance to anyone who supports children and young people in custodial settings as, despite subsequent changes in law and policy, children and young people in prisons continue to suffer huge harms, most recently documented in the urgent notifications made in respect of Oakhill (October 2021) and Rainsbrook (June 2021) secure training centres.

In addition to affirming the applicability of the Children Act 1989 to children in custodial settings, the judgment contains an important analysis of public authorities’, including prisons’, human rights obligations under the European Convention on Human Rights and the United Nations Convention on the Rights of the Child.

R (on the Application of Howard League) v Secretary of State for the Home Department and the Department of Health 2002

This judicial review was brought by the Howard League for Penal Reform and centred on the duties towards children aged under 18 years who are detained in young offender institutions (YOIs). The charity’s decision to bring judicial review proceedings was motivated by a concern about “the systemic issues that affected all children in custody”.* This concern was compounded by the well-documented, exceptional vulnerability of children and young people entering custody, including frequent experience of local authority care, history of trauma, poor education experience and complex family circumstances.

The High Court was asked to consider several questions, the main of which could be summarised as follows: To what extent, if any, does the Children Act 1989 apply to YOIs or to children detained in YOIs?

The answer would have far-reaching implications as, at the time, central government policy guidance (Prison Service Order 4950: Regimes for Prisoners Under 18 Years Old) said that “the Children Act 1989 does not apply to under 18-year-olds in prison establishments”.

The High Court ruled that, while the Children Act 1989 does not contain any references to YOIs or the Prison Service, nor does it impose any functions, powers, duties or responsibilities on the Prison Service, there is nothing in it that excludes from its protections children who are incarcerated in YOIs. This means that “the duties which a local authority would otherwise owe to a child either under Section 17 (of the Children Act 1989) or under Section 47 do not cease…because the child is currently detained in a YOI”. The court confirmed that, in that sense, the Children Act 1989 does apply to children in YOIs, though the relevant “functions, powers, duties and responsibilities” of local authorities…, and specifically those under Sections 17 and 47, would be “subject to the necessary requirements of imprisonment”.

Consequently, the statement within the Prison Service Order 4950 which said that “the Children Act 1989 does not apply to under 18-year-olds in prison establishments” was found by the court to be wrong in law.

The legal framework

Below, we summarise the elements of the legal analysis from the judgment that remain pertinent today and will be useful to all those who help and support children and young people in custodial settings.

  • Children Act 1989

The parts of the Children Act 1989 that were seen by the High Court to be of central importance to this case were Part III (Support for children and families provided by local authorities in England) and Part V (Protection of children). In particular, the court examined the duties towards children in prison set out in Sections 17 and 47 of the Children Act 1989.

Section 17 places a “general duty” on every local authority to “safeguard and promote the welfare of children within their area who are in need”. ‘A child in need’ is defined in Section 17(10) as (a) a child who is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision of services by a local authority; (b) a child whose health or development is likely to be significantly impaired, or further impaired, without the provision of such services; or (c) a child who is disabled. ‘Development’ is defined broadly in Section 17(11) as “physical, intellectual, emotional, social or behavioural development”, and ‘health’ is defined as either physical or mental health.

In this judgment, the court cited useful case law ([2001] EWCA Civ 1151 (para 95)) to clarify that “the distinguishing feature of a ‘child in need’…is not that [the child] has needs – all children have needs which others must supply until they are old enough to look after themselves – but that those needs will not be properly be met without the provision of local authority social services…”.

Crucially, the court examined the local authority’s duty to investigate whether action should be taken to safeguard or promote the child’s welfare where there’s “reasonable cause to suspect that a child who lives, or is found, in their area is suffering, or is likely to suffer, significant harm”. This duty is expressed in Section 47 of the Children Act 1989. ‘Harm’ (defined in Section 31(9)) means “ill-treatment or the impairment of health or development”, with ‘development’ and ‘health’ defined as above and ‘ill-treatment’ defined as “including sexual abuse and forms of ill-treatment which are not physical”.

[The Adoption and Children Act 2002 later expanded the definition of harm to include “impairment suffered from seeing or hearing the ill-treatment of another”. This is very relevant and significant in the context of the experiences of children who live in institutional settings such as prisons. Further, a new Section 47(5A) duty was inserted into the Children Act 1989 by the Children Act 2004 – this requires that the child’s wishes and feelings are ascertained and given due consideration by the local authority when it is considering whether to take action to safeguard or promote the child’s welfare].

  • Human rights law

Article 3 (Protection from torture or inhuman or degrading treatment or punishment) and Article 8 (Right to respect for private and family life, which includes physical and psychological integrity) of the European Convention on Human Rights (ECHR) were identified as most relevant in the context of this case. The government has positive obligations to protect children (and adults) against breaches of these rights.  

The Human Rights Act (HRA) 1998 gives the ECHR direct effect in UK law and makes it unlawful for any public authority, such as the Prison Service or a local authority, to act incompatibly with the ECHR (Section 6(1) HRA). Sections 7 and 8 of the HRA enable victims of rights breaches, both children and adults, to seek justice through domestic courts.  

Additionally, Articles 3 and 37 of the United Nations Convention on the Rights of the Child (UNCRC) were identified as relevant.  

Article 3 of the UNCRC affirms the primacy of the best interests of the child and states that “in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration”. This encompasses taking “all appropriate legislative and administrative measures” to ensure that the best interests principle is implemented when decisions are taken by “institutions, services and facilities responsible for the care or protection of children”.    

Article 37(c) of the UNCRC guarantees the right of every child deprived of liberty to be treated with dignity and respect, and “in a manner which takes into account the needs of persons of his or her age”.

Unlike the ECHR, the UNCRC does not have direct effect in UK law and violations of UNCRC rights cannot on their own be challenged in domestic courts. However, as part of this judgment, the High Court shared a view that the UNCRC helps “proclaim, reaffirm or elucidate” both the nature and scope of the rights protected by the ECHR and other human rights instruments (para 51) and therefore it can be “properly consulted” by the courts when they make decisions. (Case law on this has inevitably developed over the intervening years; this will be covered in our forthcoming, December 2021, legal digest).

Taking the ECHR and the UNCRC into account, the court concluded that:

“…human rights law imposes on the Prison Service enforceable obligations, that is, obligations enforceable by or on behalf of children in YOIs:
i) to have regard to the ‘welfare’ principle encapsulated in the UN Convention [on the Rights of the Child]; and
ii) to take effective steps to protect children in YOIs from any ill-treatment, whether at the hands of Prison Service staff or of other inmates, of the type which engages either Article 3 or Article 8 of the European Convention”.

The impact of the judgment

The judgment had far-reaching implications in that it clarified legal responsibilities of both the Prison Service and local authorities. As expressed by the Howard League for Penal Reform*:

“[The judgment] meant that children in prison were not offenders to be treated differently from children in the community, but children who were entitled as a matter of law to full rights under the Children Act 1989. This meant that if they were in need and appeared to the local authority to require help to prevent the any further impairment to their health and development, the local authority was required to provide it under section 17 of the Children Act 1989. Similarly, if there was reason to believe a child was at risk of serious harm, the local authority where the prison was based was required as a matter of law to investigate this.”

* The Howard League for Penal Reform, Written evidence to the Joint Committee on access to justice of the Government’s proposed judicial review reforms, para 6.1.

You can read the full judgment here.

For other cases we covered in our landmark judgments series, visit the January 2021 (‘The
Southwark judgment’ and the rights of homeless 16 and 17-year-olds) and the April 2021 issue (‘The D judgment’ and the issue of deprivation of liberty).

Children’s wishes and feelings and local authority duties under Sections 17 and 47 of the Children Act 1989.

At the time of the ‘R (on the Application of Howard League)’ judgment, neither Section 17 nor Section 47 of the Children Act 1989 required local authorities to listen to children or take their wishes and feelings into account when making decisions about what action may be needed to safeguard and promote the child’s welfare.

The Children Act 2004 changed this and made it a legal requirement under the Children Act 1989 to give due consideration to a child’s wishes and feelings when determining what services to provide under Section 17 and before making decisions about action to be taken to protect individual children in line with statutory duties under Section 47.

Section 17(4A) and Section 47(5A) now contain an explicit, two-part requirement to:
1.      Ascertain the child’s wishes and feelings; and
2.      Give due consideration (having regard to the child’s age and understanding) to such wishes and feelings.  

These duties are elaborated in multi-agency statutory guidance – Working together to safeguard children 2018 – which states:  “Anyone working with children should see and speak to the child: listen to what they say; take their views seriously; and work with them and their families collaboratively when deciding how to support their needs” (para 14).

To find out about statutory entitlement to advocacy for different groups of children and young
people, including children in custodial settings and children who are in contact with child protection services, visit our ‘right to advocacy’ page .