Article 39’s response to Ministry of Justice, July 2021
- Article 39 fights for the rights of children living in state and privately-run institutions in England. A registered charity, we take our name from Article 39 of the United Nations Convention on the Rights of the Child (UNCRC), which grants every child who has experienced abuse or suffered other violations of their rights to recover in environments where their health, self-respect and dignity are nurtured. Our work runs across four complementary areas: legal education; practice development (our national network of independent advocates has nearly 300 members); policy advocacy, research and strategic litigation; and awareness-raising of the rights, views and interests of children.
- Article 39 was one of the founding members of the End Child Imprisonment campaign, which in 2019 published a set of principles and minimum expectations for children deprived of their liberty. Our vision is that all children, whether deprived of their liberty through a criminal justice, health or welfare legal route, enjoy the same rights and protections. Our joint document set out the following in respect of separation.
|Children will only be separated from their peers where it is assessed as being in their own interests or is necessary for their own protection or to avoid harm to others. Episodes of separation should be for the minimum necessary period and will result in the child being in a safe, comfortable and inviting space with a range of positive activities to engage them. Episodes of separation will be subject to regular, and frequent, review by health staff, care staff and senior management. Parents and carers, and relevant professionals in the community, will be notified if their child is separated from the establishment’s ordinary routines. |
Complete isolation will never be acceptable. Children who are separated from the main group of their peers will, wherever possible, have continued engagement with other children with whom they can safely mix and should continue to receive suitable education and to participate in activities to the maximum extent consistent with the circumstances and their needs. All children subject to separation will continue to have access to positive and meaningful engagement with experienced staff whom they know and trust.
All uses of separation will be recorded, reviewed and reported to the child’s family, professionals involved with them and appropriate safeguarding authorities. Children subject to separation will receive advice and assistance from independent advocates; advocates will attend debriefing sessions with the child and support them to participate fully in the process and ensure that their views are taken into account. Settings will be committed to learning from the use of separation and reviews will lead to the identification of staff’s learning and support needs to ensure that children are separated from their peers as a last resort and for the shortest period possible. Children’s individual care plans will be reviewed after each episode of separation and amended, if necessary, to avoid the need for future separation.
- We very much welcome this draft policy and commend its consistent focus on children’s needs, feelings and perspectives. With further revisions, we believe it could help to bring about significant positive change for children.
Policy name and purpose
- We suggest the policy is renamed ‘Avoiding the use of separation in the children and young people’s secure estate’.
- Despite the heading, paragraphs 1.1 and 1.2 do not currently explain the purpose of this policy document. We suggest these paragraphs are redrafted, along the following lines.
Purpose of this policy
This policy aims to ensure that:
The involuntary separation of children from regular activities and time with their peers is a last resort, that it is used in rare and exceptional circumstances and for the shortest period of time possible.
Separation as a form of punishment and complete isolation never occurs.
Separation is undertaken in a dignified and respectful manner, with independent authorisation, monitoring and scrutiny to enable positive reflection and learning after each incident.
Children’s needs are met, and their rights are protected, during separation.
That staff understand the impact on children of living in a custodial institution and are able to recognise and positively attend to children’s distress, anxieties and fears, as well as identify and appropriately challenge institutional cultures and practices which are harmful to children.
Common legal framework
- As the policy highlights, the statutory framework for the use of separation, and the safeguards surrounding this, differ according to the type of custodial institution (we note, however, that the statutory framework for secure children’s homes does not appear to regulate the use of separation). Having different legal frameworks does not reflect the needs and rights of children, rather this exists as a legacy of children falling between penal and child welfare policy. By virtue of the Children’s Homes (England) Regulations 2015 and Section 11 of the Children Act 2004, all children’s custodial institutions have a duty to safeguard and promote the welfare of children. This is further supported by the United Nations Convention on the Rights of the Child and the Human Rights Act 1998/ European Convention on Human Rights.
- We urge the government to review the statutory framework for the use of separation with a view to introducing a common legal framework which ensures that: separation is only ever used as a last resort to prevent serious harm to the child or others, and when positive measures have been exhausted; that children are treated with dignity and respect; and robust independent authorisation, monitoring and safeguarding arrangements are in place, including proactive help from independent advocates. Moreover, the positive role of parents, foster carers, social workers, youth offending team workers and other adults who are important to the child should be actively encouraged and supported, especially in times of crisis. Inquests and other investigations following the deaths of children in custody have identified key missed opportunities when distraught children asked to speak with their mums, or to have visits from their parents, but were denied these fundamental acts of care.
- The Ministry of Justice will be aware of the concluding observations on the UK issued by the United Nations Committee on the Rights of the Child in 2016, in particular this recommendation:
[That the UK] immediately remove all children from solitary confinement, prohibit the use of solitary confinement in all circumstances, and regularly inspect the use of segregation and isolation in child detention facilities.
- We strongly urge the government to legally prohibit the use of solitary confinement with children. We further recommend that a public consultation be undertaken to develop a child-specific definition of solitary confinement which is tailored to their developmental needs and the serious risk of harm arising from separation.
- Article 39 maintains that the current international definition – 22 hours or more a day without meaningful human contact – is not appropriate for children since it was not developed with their developmental needs in mind. The psychological, emotional, cognitive and physiological impact on children of prolonged isolation and abandonment must be considered separately from adults, and legal protections and policies developed accordingly.
- The common legal framework we propose should contain prohibited disciplinary measures, using those set out in Regulation 19 of The Children’s Homes (England) Regulations 2015 as a base. Many of these prohibited measures directly arose from children’s homes’ abuse inquiries and investigations, such as a ban on intimate physical examinations, group punishment and sleep deprivation. A revised version would include, amongst others, the prohibition of separation as a form of punishment, strict limits on the removal of children’s possessions from their rooms and a ban on strip-searching children.
- We welcome the Ministry of Justice’s emphasis throughout the draft policy document that separation must never be used as a punishment. However, the Young Offender Institution Rules 2000 contradict this. Governor’s punishments in Rule 60 include the removal of children from the wing or living unit. While we await the closure of young offender institutions, following the government’s December 2016 commitment, we strongly urge the disapplication of the adult adjudications procedure and governor’s punishments to children’s custodial settings. The Howard League for Penal Reform has reported that children and young people are disproportionately affected by this archaic form of behaviour management.
What’s missing from the document
A single, coherent definition of separation
- As currently formulated, the policy defines separation as the lawful, temporary prevention of children’s “direct contact or mixing with their peers” (paragraph 1.9). It refers to the different rules and regulations of each of the three settings of young offender institutions, secure training centres and secure children’s homes. While we urge a common statutory framework (see above), we strongly propose that the terminology of ‘rules and regulations’ is replaced with ‘the law’, so that legal obligations are clear. We further suggest that the policy builds upon the language of the Nelson Mandela Rules and adopts the definition of separation as the involuntary and unavoidable, temporary separation of children from their peers within the establishment. The reference to ‘unavoidable’ derives from the legal requirement that children in secure training centres not be removed from association “unless all other appropriate methods of control have been applied without success”. This terminology is easier to understand than ‘necessary, reasonable and proportionate’ which appears throughout the draft document and is not supported by the statutory framework.
Impact of custodial environment on children
- The policy lacks content on the impact on children of being deprived of their liberty, which includes separation from family and friends, educational disruption, limited access to leisure and the outdoors and long periods without personalised care and attention. While it is very positive that the policy consistently acknowledges the high levels of need among children in custody, and the individual difficulties and challenges they face, without underlining the harmful impact of custody itself, the impression created is that separation arises in consequence of children’s actions alone. Lack of acknowledgement of the significance of structural and cultural factors as influencing behaviours within custodial settings inhibits effective safeguarding and contributes to residential cultures which are punitive rather than nurturing. Accounts from children consistently communicate that problematic behaviour is often a response to the extreme pressures of the custodial environment and the everyday frustrations of waiting for their needs and concerns to be met. Unkind, uncaring and/or aggressive responses from prison staff can exacerbate difficult situations. Boredom, lethargy and loneliness are common experiences for children in prison.
- In many respects, the prison environment (where the majority of children continue to be detained) meets the official definition of child neglect:
The persistent failure to meet a child’s basic physical and/or psychological needs, likely to result in the serious impairment of the child’s health or development.
Learning from relevant inquiries and investigations
- We further suggest that a summary of key findings from relevant reviews, inquiries and investigations is provided in a new policy background section. This should also discuss the interface between separation, restraint and strip-searching, with a reminder of the legal and professional responsibilities of staff and managers. We recommend this summary brings together lessons learned from inquests, serious case reviews and the following:
– Her Majesty’s Inspectorate of Prisons 2020 review – Separation of children in young offender institutions
– Her Majesty’s Inspectorate of Prisons 2020 review – Report on short scrutiny visits to YOIs holding children
– Charlie Taylor’s 2020 review – A review of the use of pain-inducing techniques in the youth secure estate
– Her Majesty’s Prison and Probation Service and Youth Custody Service 2019 review – Youth custody service safeguarding review
– Independent Inquiry into Child Sexual Abuse 2019 investigation – Sexual abuse of children in custodial institutions: 2009-2017
– Medway Safeguarding Children Board 2019 serious case review – Learning for organisations arising from incidents at Medway secure training centre
– Children’s Commissioner for England 2018 review – A report on the use of segregation in youth custody in England
– Prisons and Probation Ombudsman 2017 learning lessons bulletin – Complaints from young people in custody
– Youth Custody Improvement Board 2017 review – Findings and recommendations of the Youth Custody Improvement Board
– Howard League for Penal Reform 2016 review – The Carlile Inquiry 10 years on. The use of restraint, solitary confinement and strip-searching on children
– Her Majesty’s Inspectorate of Prisons 2015 thematic review – Behaviour management and restraint of children in custody
– Children’s Commissioner for England 2015 review – Isolation and solitary confinement of children in the English youth justice secure estate
Overview of the roles and responsibilities of custodial staff and independent postholders
- We recommend that the policy contains a concise summary (or diagram) illustrating the distinct roles and responsibilities of those working within custodial settings, as well as those undertaking independent roles outside the establishment – including social workers, youth offending teams, independent advocates, local authority designated officers, Chairs of the Local Safeguarding Children Partnership, inspectors, complaints investigators, and independent monitors.
- We are very concerned that the description of advocacy in the glossary (page 29) fails to mention that advocates are independent of the establishment and central and local government, and that a very significant part of their role is to inform children of their rights and to provide assistance to protect these rights, including through helping children to access legal advice and representation. The current description of the advocate’s role and function does not reflect the national advocacy standards/statutory guidance (currently being revised) or the very comprehensive contract (which itself is based on the standards) for an independent children’s rights and advocacy service between the Ministry of Justice and Barnardo’s.
Specific safeguarding measures
- We ask that the specific child welfare and safeguarding measures set out in End Child Imprisonment’s 2019 publication referenced above are included in this policy, namely:
– Parents and carers are informed of each use of separation. They are encouraged and supported to take an active role in responding to children’s worries, distress and fears.
– Spaces used for the temporary separation of children are safe, comfortable and inviting, and children have a range of positive activities to engage them.
– There is a clear, transparent independent review mechanism in all establishments with children automatically offered proactive, opt out help from an independent advocate.
- We further suggest that the Youth Custody Service consider introducing a new and specific role for a named member of staff to act as the child’s protector in incidents where separation (and/or restraint) are a possibility. The entire focus of this member of staff in this incident would be to see events from the child’s perspective and to proactively seek to de-escalate the situation from the standpoint of the child’s needs and feelings. This would not be a passive, observer role, and it is not intended to diminish the skills and expertise of other members of staff. Instead, the purpose would be to act as an additional safeguard, recognising the unique vulnerability of children in closed institutions who are without a parental figure who is able to provide reassurance and speak up and protect them in times of crises.
- While we understand that the opening paragraph (1.7) referencing children being sent off a football pitch or being asked to leave a classroom is probably seeking to normalise children’s experiences and interactions within custodial settings, and adult responses to these, we find it unhelpful and counterproductive precisely because of the unique and extraordinary nature of custodial settings. Underestimating and failing to acknowledge the pressures and challenges of the custodial environment, including the powerlessness and the deep humiliation, frustration and anger felt by children when they are publicly (and often forcibly) separated from their peers, runs counter to efforts designed to create safe and respectful spaces for children within custodial settings.
- Section 3 (outcomes) is not clear enough presently because it straddles requirements around the avoidance and use of separation, as well as external scrutiny and monitoring. The individual points in 3.3 are described as principles. We suggest that this section is revised with a focus on the expected outcomes for the child of any rare and exceptional use of separation.
- We strongly object to ‘self-isolation’ being part of this policy given this is frequently a coping measure for children who feel desperately unsafe and unwell. Inspection reports of young offender institutions consistently show that disabled children and children who were formerly in care disproportionately ‘elect’ to stay in their cells and/or ask to be segregated.
- Similarly, ‘regime restriction’ due to staffing shortages and organisational management cannot be justified.
- We recommend that the policy establishes the minimum requirements for ensuring children’s safe separation in terms of physical environment, personal possessions, stimulating activities, support needed during separation and meaningful contact with staff.
- We suggest the Section 2 evidence section be included as an annex, and that the current very helpful boxed summary of key points made in a hearing of the Justice Committee in July 2020 (page 14; paragraph 2.3) is moved to a new section which addresses the pressures on children of living in a custodial institution.
- We welcome the acknowledgement in the draft document of how difficult it can be for children to publicly ‘back down’ or for them to appear to show defeat in front of other children. These dynamics also exist for members of staff, and we believe it would be helpful to explicitly recognise this within the context of emphasising the responsibilities of staff and managers to guard against and appropriately challenge abusive cultures and practice. This new content would also outline the importance of whistleblowing, the procedures in place to facilitate this and the protection available to individuals who take positive action to protect others.
 End Child Imprisonment (2019) Principles and minimum expectations for children deprived of their liberty, page 13.
 Regulation 2 The Children’s Homes (England) Regulations 2015 defines restraint as the use of force and deprivation of liberty, and Regulation 20 follows from this, but this does not appear to specifically relate to the use of separation. Further, Regulation 17(g) The Children (Secure Accommodation) Regulations 1991 provides a duty to keep a record of any occasion when a child is locked in their bedroom other than during usual bedtime hours. This obviously does not relate to separation occurring other than in a child’s bedroom.
 See especially Articles 2, 3, 6, 12, 20, 24, 37, 39 and 40.
 See especially Articles 3, 8 and 14.
 Regulation 22 of The Children’s Homes (England) Regulations 2015 protects children’s contact and communications with people of importance to them; this should be available to all children across different types of establishments.
 United Nations Committee on the Rights of the Child (2016) Concluding observations on the United Kingdom of Britain and Northern Ireland, paragraph 78(f).
 Rule 44, the Nelson Mandela Rules states: “For the purpose of these rules, solitary confinement shall refer to the confinement of prisoners for 22 hours or more a day without meaningful human contact. Prolonged solitary confinement shall refer to solitary confinement for a time period in excess of 15 consecutive days”. https://www.unodc.org/documents/justice-and-prison-reform/GA-RESOLUTION/E_ebook.pdf
 Ministry of Justice (December 2016) The government response to Charlie Taylor’s review of the youth justice system, page 30.
 Howard League for Penal Reform (2020) Justice does not stop at the prison gate: justice and fairness in prisons.
 United Nations General Assembly (2016) United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules).
 Rule 36(2) The Secure Training Centre Rules 1998.
 HM Government (2018) Working together to safeguard children, page 108.
 Department of Health (2002) National standards for the provision of children’s advocacy services.