Category: Child protection

Pain-inducing restraint of vulnerable children: legal challenge on hold

Adam Rickwood photograph
Adam Rickwood hanged himself in 2004, aged 14, after Serco officers unlawfully restrained him – including by striking him in the nose. The ‘nose distraction’ was then an authorised restraint technique.

Article 39’s application for permission to apply for judicial review of the authorisation of pain-inducing restraint on children has been stayed pending the Charlie Taylor Review and the report of the Parliamentary Joint Committee on Human Rights.

This means we can return to court should children’s human rights continue to be breached after both investigations have concluded.

With financial backing from 196 donors, we have been challenging the Ministry of Justice’s authorisation of pain-inducing restraint during detained children’s journeys to and from secure children’s homes. GEOAmey holds the contract for prisoner and secure escorts. 

We have argued that the Government’s policy breaches children’s rights to protection from inhuman and degrading treatment or punishment, and to protection from discrimination, under Articles 3 and 14 of the European Convention on Human Rights. Pain-inducing restraint within secure children’s homes is banned. 

We are also pressing for clear and public rules setting out when children may be restrained during their journeys to and from places of detention. 

Our challenge led the Ministry of Justice to review its policy on pain-inducing restraint during children’s journeys to and from custody. It then committed to a much wider review of pain-inducing restraint across young offender institutions, secure training centres and secure children’s homes – as well as the escorting process. This is being undertaken by Charlie Taylor and is expected to report no later than Summer 2019.

Parliament’s Joint Committee on Human Rights is also conducting an inquiry into the solitary confinement and restraint of children in custody. The Committee recommended the abolition of pain-inducing restraint techniques in children’s custodial institutions in 2008 and 2009. Since then the European Committee for the Prevention of Torture, the UN Committee on the Rights of the Child and the UN Committee Against Torture have all urged the withdrawal of these harmful techniques.

Article 39’s Director, Carolyne Willow, said:

“With the Charlie Taylor Review, this is the first time Ministers have commissioned a stand-alone investigation of the deliberate infliction of pain on vulnerable children. This has only happened because of our legal challenge, and we are extremely grateful to all those who donated funds and to our excellent legal team.  

“This year is the fifteenth anniversary of the death of Adam Rickwood, a 14-year-old boy who hanged himself after officers deliberately assaulted him in the nose – which was then an authorised method of restraint. A second inquest into his death found he had been unlawfully restrained. 

“It’s been a very long wait to get this basic child protection, where members of staff are not allowed to strike a child in the name of restraint, but we are now the closest we have ever been.

“There is no question that we will return to court should the Charlie Taylor and Joint Committee on Human Rights’ reviews not result in children receiving the protection to which they are entitled.”

Article 39 is represented by Mark Scott, Partner at Bhatt Murphy Solicitors, and Dan Squires QC and Tamara Jaber from Matrix Chambers.

Royal Assent given to first restraint Act of Parliament

Article 39 is delighted that Royal Assent has been given to the UK’s first Act of Parliament dedicated to protecting children and adults from abusive restraint.

The Mental Health Units (Use of Force) Act 2018 is known as Seni’s Law, after 23 year-old Seni Lewis who died after being restrained by 11 police officers called to the Bethlem Royal hospital in London on 31 October 2010. Seni, an IT graduate, had been admitted to the hospital as a voluntary patient.

  • Last year, 9,296 people were subject to physical restraint in a mental health, learning disabilities or autism service in England; the total number of physical restraints was 53,188 – giving an average of 6 restraints per person.
  • There were 19,078 incidents of physical restraint among 1,198 children and young people (under the age of 20 years) – giving an average of 16 restraints per child and young person. This is nearly three times the overall average.
  • Prone restraint is when a person is held face down onto a surface. There were 3,405 incidents of prone restraint on children and young people (under 20 years old) in England in 2016/17. For all ages, the figure was 10,071, meaning that 34% of face-down restraint were used on children and young people.

With YoungMinds, INQUEST and others, we have been working on the legislation as it made its journey through Parliament.

Carolyne Willow, Article 39’s Director, states:

“This Act of Parliament will massively strengthen child protection within mental health units. Children in these settings are, by definition, extremely poorly and vulnerable, and restraint continues to be used much too frequently and not as a last resort. We offer our utmost respect to the family of Seni Lewis whose courageous fight for justice has ensured child and adult patients have legal rights to dignified, respectful and safe care.” 

Three provisions in the legislation which Article 39 specifically pushed for:

  • Section 5(2)(i) requires that staff training relating to the use of force includes the impact of restraint on a patient’s development. We would have preferred the wording ‘child’s development’ but the meaning is the same – training must specifically include the effects of use of force on children’s development.
  • Section 6(5)(m) requires a description of the outcome of the use of force to be recorded – this means that any injuries and/or psychological harm suffered by children (and adults) will be noted.
  • Section 6(5)(p) requires that records about the use of force indicate whether parents (or others in a patient’s care plan) were notified after each use of force. This is a vital safeguard for vulnerable children who may not tell their parents (or the local authority if they are in care) if they have been restrained. This duty will also benefit adult patients.

Article 39 wanted more protections to be included in the primary legislation but we are very reassured that the Department of Health has agreed that the statutory guidance will specifically – and separately – address the rights and needs of children in mental health units.

We look forward to working on the guidance over the next 12 months, and hope the Government will commence the legislation at the earliest opportunity. (Once an Act of Parliament gains Royal Assent, unless it states otherwise, it is up to Ministers to decide when it will come into force).

 

Article 39 urges greater focus on child’s wishes and feelings

In its response to the government’s consultation on statutory safeguarding guidance, Article 39 urges “much greater prominence to independent advocacy” as a means of ensuring children’s wishes and feelings are known, understood and valued. We advocate the following additions to the guidance:

  • Local authorities should be required to produce age appropriate information to children and young people about their right to independent advocacy, how they can access such support and the benefits of having an advocate (this mirrors existing statutory guidance relating to independent advocacy and independent reviewing officers).
  • Local authorities should be required to provide age appropriate information to children and young people about independent advocacy whenever they are determining what services to provide under s17 of the Children Act 1989, and what action to take under s47 of the Children Act 1989.
  • The guidance should describe the role of independent advocates in ensuring the child’s wishes and feelings are known and understood and accorded due consideration (having regard to his or her age and understanding) in the various assessment and review processes, including child protection conferences.
  • Children should be signposted to the advice and assistance offered by independent advocacy services when they are informed of the outcome of s47 enquiries (this is especially pertinent when concerns about significant harm have been found to be unsubstantiated and it was the child who initially sought help).
  • In respect of institutional settings, the guidance should require local authorities to make arrangements for all children for whom there are safeguarding concerns to be proactively visited by an independent advocate, wherever practicable before a strategy discussion is held.
  • All institutional settings must be required to include key learning and action taken in response to children and young people’s use of independent advocacy services in their annually reviewed safeguarding children policy.
  • Safeguarding partners should monitor and evaluate the availability and effectiveness of independent advocacy in ensuring the child’s wishes and feelings are ascertained and given due consideration and statutory safeguarding obligations are upheld.
  • Safeguarding partners should monitor and evaluate the effectiveness of training for practitioners on children’s rights and safeguarding, including the role of independent advocates.

In addition, we advocate for the restoration of the section on ‘Keeping the child in focus’, which was added to the 2010 version of the guidance but deleted in 2013.

We argue for distinct guidance on how agencies should respond to concerns about institutional child abuse. Research conducted by Article 39 shows the majority of allegations against adults working with children in institutional settings are not dealt with under Section 47 of the Children Act 1989 (which governs child protection enquiries), where local authorities are under a duty to ascertain and give due consideration to the child’s wishes and feelings. Our submission explains:

we fear that professionals are making judgements about abuse without children ever being seen or heard by a child protection social worker independent of the institution.

The draft guidance signposts the elements of an effective safeguarding system. We propose children’s right to recovery from maltreatment and trauma be added to this, and suggest the following text:

the immediate and long-term effects of childhood maltreatment and trauma are properly understood and attended to, so that children are given the individual care and assistance they need to recover.

We recommend that all places of child detention be required to undertake annual restraint reviews, and that all deaths of children in the care of the state be considered for a national child safeguarding practice review. The draft guidance currently requires such consideration only for children in the care of local authorities, which would exclude many children serving custodial sentences, children in mental health in-patient units and children in immigration detention.

Given increasing levels of child poverty and homelessness, we suggest the definition of neglect is adjusted to acknowledge the steps parents take to try and provide their children with food, clothing and shelter and the obligations of the state to uphold the socio-economic human rights of children.

Read our submission here:
Article 39 Working Together response December 2017

Review of pain-inducing restraint

The Ministry of Justice is reviewing its authorisation of pain-inducing restraint by GEOAmey escort custody officers taking children to and from secure children’s homes and secure training centres.

This follows our threat of legal action.

Restraint techniques which deliberately inflict pain on children are banned in secure children’s homes. Yet escort custody officers employed by GEOAmey have been authorised and trained to deliberately inflict pain when taking children to and from secure children’s homes since mid-2016.

Article 39 ran a crowdfunder in the Summer to raise funds to be able to legally challenge the policy. Nearly 200 donors generously helped us defend the rights of children.

After we wrote to the Ministry of Justice, it examined restraint records and found there had been no reports of pain-inducing restraint by GEOAmey escort custody officers. To avert legal proceedings, it said it would consider the safety implications of removing the techniques.

Carolyne Willow, Article 39’s Director, said:

“We welcome the review as a massive opportunity for the government to take positive action to protect the rights of very vulnerable children.

“Pain-inducing restraint is an abuse of children’s rights, dangerous and unjustified. It is already prohibited in other settings by the Department of Health and the Department for Education. Successive human rights bodies have told the UK to remove these brutal restraint methods.

“This is the first time the Ministry of Justice has shown itself open to removing pain-inducing restraint, albeit only in the escorting context, since the terrible death of 14 year-old Adam Rickwood.

“Adam was unlawfully restrained and inflicted with a severe assault to the nose, euphemistically called a ‘nose distraction’. Before he hanged himself in his cell at Hassockfield secure training centre, in 2004, he wrote explaining he had asked why staff were allowed to hit him in the nose and they told him it was restraint.

“This review could, at last, signal a move towards child-centred care.”

We urge organisations and individual experts to contribute evidence to the review by 22 December.

Please send your submission to us, and we will forward to the Ministry of Justice:

info@article39.org.uk
Subject heading – Pain-inducing restraint and escorts

Read our submission to the Ministry of Justice: Article 39 submission pain-inducing restraint 14 Dec 2017

Article 39 calls for government guidance on responding to institutional child abuse allegations

Article 39 has today published a briefing on the results of our pioneering research on allegations made against adults working in children’s institutional settings between 2012 and 2015, and the action taken by local authorities.

53 councils were notified of 2,479 allegations against adults working with children in institutions across this three-year period.

We make three recommendations for ensuring the child protection system works for children living in institutions:

1) The Department for Education and inspectorates consider routinely publishing data on abuse allegations and outcomes.

2) The Department for Education develop distinct guidance for local authorities on responding to institutional abuse allegations.

3) The Department for Education commission qualitative research into children’s experiences of the child protection system when they live in institutional settings.

Headline findings were first shared at our national seminar on International Children’s Rights Day (20 November). You can download the briefing from the library section of our site.