High Court agrees that lost safeguards are fundamental to children’s protection, but finds that the Department for Education acted lawfully due to the pandemic

In a judgment handed down today (7 August), the High Court finds that Article 39 was correct to warn that vital safeguards for children in care were removed or diluted overnight in April. However, the Department for Education was not found to have acted unlawfully. Article 39 is now seeking an urgent appeal of the judgment focusing on the government’s failure to consult children, children’s rights organisations and the Children’s Commissioner for England.

The Adoption and Children (Coronavirus) (Amendment) Regulations 2020 were laid before Parliament by the Children’s Minister Vicky Ford MP on 23 April, and came into force the very next day. There was no public consultation or time given for Parliamentary scrutiny. The 65 safeguards which were taken away or weakened affected social worker visits to England’s 78,000 children in care, six-monthly reviews of the care of looked after children, independent scrutiny of children’s homes and senior officer oversight for babies and children being considered for adoption. Disabled children having short breaks and children placed outside their home areas were also affected.

The Department for Education had insisted these were minor changes and simply involved the removal of administrative burdens rather than the watering down of core safeguards. Mrs Justice Lieven, who heard the expedited hearing last week, rejected the government’s description and concluded:

I fully accept the Claimant’s submission that the children subject to these Regulations are particularly vulnerable. Many local authorities in the field do not manage to provide a good enough level of service and this leaves already very vulnerable children highly exposed to risk. When things do go wrong it can be catastrophic for the children involved. In those circumstances, the importance of having regular visits; senior officer oversight by nominated officers; some independence through independent reviewing officers and independent adoption panels cannot be overstated. These are not administrative burdens, or minor matters, they are fundamental parts of a scheme protecting vulnerable children. Each has been introduced over time precisely because of the risks that [looked after children] face and the need for safeguards to be in place. [76]

Elsewhere in the judgment, Mrs Justice Lieven stated:

… I agree with the Claimant that these are not bureaucratic provisions that are a “burden” and as such can be set aside relatively lightly. Regular visits to children, oversight by more senior officers over decision making and provision for independent scrutiny are critical safeguards to protect deeply vulnerable children in a field where errors happen with sad frequency and the consequences can be devastating. [48]

Despite recognising the risk to very vulnerable children, Mrs Justice Lieven found the Department for Education had acted lawfully. 

There were three grounds to Article 39’s claim – 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; and the Education Secretary, Gavin Williamson MP, breached his general duty to promote the well-being of children in England. The judge dismissed all three grounds.

On consultation, the court was given no explanation as to why those organisations (predominantly local authorities and private providers) selected by the Department for Education to give their views on proposed deregulation were told to keep this private. The government first started reviewing children’s social care legislation in February and correspondence it has released shows it began sharing some of its proposals with selected organisations the following month.

During the first day of the hearing parts of an email from the Chief Social Worker for Children and Families, Isabelle Trowler, to a number of local authorities was read out by Article 39’s counsel, Jenni Richards QC. The email had stated, “Please do not distribute more widely for obvious reasons”.

Similarly, the court was told that a briefing sent to Ministers in early April, to gain sign-off for the deregulation, had advised that civil servants had “engaged with stakeholders on the proposals in confidence”. The same briefing told Ministers that only “minor changes” to children’s law were being proposed though civil servants anticipated that “some in the sector could view this as ‘watering down’ existing arrangements, particularly around safeguarding, at this critical time”. Mrs Justice Lieven said that Article 39’s counsel:

says, correctly, that the consultation was all with the providers of services, i.e. local authorities and private providers, and not with either children’s rights groups, the Children’s Commissioner, or children themselves. She also points out that the Department said that the consultation was confidential but has never explained why this was the case. [49]

Although Mrs Justice Lieven entirely accepted Article 39’s claim that children have their own views and interests, and she did not dispute that they have a separate right to be consulted, she did not accept that the interests of children were not taken into consideration:

I entirely accept the Claimant’s case as to the importance of hearing from both children themselves and those advancing their rights and that local authorities and providers do not represent those children. There will in some cases be a conflict between the wishes and interests of providers and those of [looked after children]. However, that is not to say that the providers who were consulted were ignoring the need to protect the children and continue to seek to protect their welfare… This is not a situation where the interests of the children were simply not taken into consideration through the consultation. [82]

Mrs Justice Lieven found that Article 39 was entitled to argue that the Children’s Commissioner for England, the only statutory body promoting and protecting children’s rights and having specific legal responsibilities in respect of children in care, should have been consulted. The Department for Education denied it made a conscious decision not to consult the Children’s Commissioner yet gave no “very clear explanation” [83] as to why consultation didn’t take place. Despite this, Mrs Justice Lieven found the process had been lawful because of the pandemic:

In anything less than a national crisis of quite such urgency I would have been minded to find that the consultation was not lawful if the Commissioner was not consulted. [83]

The judge found that the coronavirus emergency legitimately prevented any form of consultation with children, children’s rights groups and the Children’s Commissioner:

In normal circumstances there can be no possible doubt that the Defendant would have had to ensure that he was consulting a range of people in order to ensure that he was getting a full answer to the question posed. In particular I have no doubt that in normal circumstances he would have been under a duty to consult the Children’s Commissioner whose very statutory purpose was to put forward the views of children and promote their welfare. [79]

Article 39 is deeply disappointed that the court found a total absence of consultation with children, children’s rights organisations and the statutory children’s rights body, the Children’s Commissioner for England, was lawful in the circumstances of the coronavirus pandemic. Carolyne Willow, Article 39’s Director, said:

“These were not split-second decisions the government had to make. The process of reviewing all children’s social care regulations started in February and it wasn’t until the third week of April that the final plans were laid before Parliament. Of course these were extraordinary times, and normal consultation processes couldn’t be expected, but not to have engaged at all with children and young people, and organisations which promote and protect their rights, makes no rational sense. There wasn’t even a government announcement that deregulation was being considered, and discussions that did take place were deliberately held in secret. This is no way to make national policy about very vulnerable children. The judge has been crystal clear in rejecting the government’s narrative that this whole process concerned minor, low risk changes to administrative burdens. The court accepted Article 39’s arguments about the significance of the safeguards, so this should surely have pointed to a greater need for a fair consultation process.

“We firmly reject the implication of this judgment which is that in times of emergency, despite having a period of two months to make decisions, the only voices government must listen to are public bodies and service providers. It is with a heavy heart, because we know the cost risk and the work involved for everyone, that we have instructed our legal team to seek an urgent appeal. We just cannot risk this judgment taking us back decades to a time of paternalism and worse, when children had no separate status and rights to be considered. One of the primary reasons the Children’s Commissioner post exists is to ensure children have a voice and presence in the corridors of power.

“Here we had a government department which considered and planned over a period of two months the radical deregulation of children’s safeguards and never once sought to hear the views of children themselves or the organisations solely representing their interests. Apart from anything else, what does this tell other government departments about the importance of children’s rights – the Home Office or the Department for Work and Pensions for example – when the Department for Education decided not to consult the Children’s Commissioner whose office pre-lockdown was just several floors down from Ministers?”

Oliver Studdert, partner at Irwin Mitchell, representing Article 39 said:

This is a very disappointing decision. In giving judgment, the judge recognised the importance of the safeguards which have been removed by the regulations as ‘fundamental parts of a scheme of protecting vulnerable children’. She also stated that she entirely accepts the Claimant’s case ‘as to the importance of hearing from both children themselves and those advancing their rights and that local authorities and providers do not represent those children’. Despite this, the judge found the Secretary of State for Education’s failure to consult the Children’s Commissioner (who has vociferously opposed the regulations), children’s rights charities (many of whom are calling for the regulations to be scrapped) and those affected by the regulations to be lawful, because of the urgency caused by the pandemic. This is notwithstanding the fact that it was found that there was sufficient time to consult. Article 39 is seeking permission to appeal the judgment on this ground to the Court of Appeal.

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. The judgment can be read here.
  3. The Adoption and Children (Coronavirus) (Amendment) Regulations 2020 is known as Statutory Instrument 445 (the 445th statutory instrument to be laid before Parliament in 2020).
  4. The powers and duties of the Children’s Commissioner for England are set out in Part I of the Children Act 2004. The Commissioner’s specific obligations relating to children in care and care leavers (and others in regulated settings) were inserted into the legislation in 2014, when Ofsted’s Children’s Rights Director post was simultaneously deleted. That statutory post had been created in 2001 following serious and widespread abuse in the care system. When its functions moved to the Children’s Commissioner’s office, it was with the express policy intention that this role would now champion the rights and protection of vulnerable children in regulated settings.
  5. The Department for Education recently held a public consultation on allowing the vast majority of the regulatory changes to expire on 25 September. Following previous failed attempts to deregulate children’s social care – most notably in 2016/17 when Ministers sought to allow councils to opt out of their statutory duties for up to six years as a trial for removing them nationwide –  Article 39 feared that COVID-19 was being used as an excuse for radical deregulation, and that this expiry date would be extended beyond September. Official documents and Ministerial statements about Statutory Instrument 445 further contributed to this fear.
  6. Over 60 organisations and several hundred care experienced people, social workers and others are calling for Statutory Instrument 445 to be scrapped immediately. See the full list here.
  7. Article 39 is re-opening its crowdfunding page to help raise funds for our appeal. 

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.

Removal of safeguards for children in care – judicial review given go ahead

Article 39 children’s rights charity has been granted permission for a judicial review of the Department for Education’s removal and dilution of children’s legal protections pushed through overnight in April, under the guise of COVID-19. Given the seriousness of the legal changes, and the vulnerability of the affected children, Article 39 asked the court for the case to be expedited; this has also been agreed and the High Court hearing will take place on 27 and 28 July.

The Adoption and Children (Coronavirus) (Amendment) Regulations 2020 – also known as Statutory Instrument 445 – were laid before Parliament on 23 April and came into force the very next day. They make around 100 changes to 10 sets of children’s social care regulations, supposedly because of COVID-19 though none of the amendments specifically state that safeguards can be relaxed only due to the effects of the pandemic. 

Article 39 counts 65 losses or dilutions of safeguards for children in care, and children who could come into care – affecting many thousands of the most vulnerable children in our country. The safeguards affected include: social worker visits; reviews of children’s welfare in care; independent scrutiny of children’s homes, prospective adoptive parents and foster carers; and the process for placing children in care away from their home areas, including outside of England.

The High Court has granted permission for judicial review on 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.

Carolyne Willow, Article 39’s Director, said:

“Children in care should be receiving the very best protections we can offer during this global pandemic. Families up and down the country have responded to these very frightening and uncertain times by changing their work and home routines to ensure their children’s needs are properly met. Removing legal protections from children in the care of the state inevitably puts them at great risk, and we know from past tragedies that too often children’s suffering goes hidden until it is too late and the harm has been done.

“Before the pandemic, at least half of local authorities were struggling to meet their statutory children’s social care duties – as judged by Ofsted – and councils have been saying for years that they are desperate for funds to meet the needs of children and families. Ministers should have been focused on ensuring local authorities had the financial support they needed to keep children in care safe and protected, rather than dismantling safeguards which their own statutory guidance states are vital and important.

“As a very small charity, any legal action we take to protect the rights of children involves financial risk and we are delighted the court has agreed to cap our costs should we lose the case.”

Oliver Studdert, partner at Irwin Mitchell, said:

This is a very important legal case which seeks to protect vulnerable children’s rights. In listing the case for a full hearing to be heard in just five weeks’ time, the High Court recognises the urgent and important nature of Article 39’s challenge. The Secretary of State did not comply with legal duties to consult with those most impacted by the significant and wide ranging changes which the Regulations introduced. The children and young people in our care system rely on the support of the local authority, who should care for them as a parent would care for their child. These are some of the most vulnerable people in society, yet these Regulations have removed essential safeguards which were previously deemed necessary to keep them safe. In a time of crisis where many children in the care system need more support, they are being given less.”

Permission was not granted on the fourth ground, relating to Parliamentary procedure and failure of the government to make time for Members of Parliament and Peers to scrutinise the changes prior to them coming into force.

The news comes days after a children’s rights campaigner, John Radoux, received a freedom of information (FOI) response from the Department for Education which stated that no organisations made any request for specific changes to the 10 sets of regulations. This is despite an official government document for Parliament (published in April, with the Regulations) stating that: “Key stakeholders across the children’s social care sector were consulted … [They] provided suggestions for suitable amendments and have subsequently been provided with further detail of the changes that are being made and have provided broad support”. On 5 May, the Education Secretary told Parliament: “On the regulations we have laid, we worked very closely with the ADCS – the Association of Directors of Children’s Services – on how we make sure we do everything we can to maintain the very best support for all children when they are in care. It and the sector have specifically asked us to make sure that some flexibilities are made available to them”. The FOI response also told Radoux it was impossible to give the start and end dates of the consultation which preceded the Regulations because “There was no formal consultation”.  

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 – The Adoption and Children (Coronavirus) (Amendment) Regulations 2020 – can be found here. It is due to expire on 25 September 2020 “unless extended”. Several provisions will continue beyond this date, irrespective of the actions of Ministers.

3.      The Explanatory Memorandum laid before Parliament can be found here.

4.      Article 39’s summary of the 65 legal safeguards which were removed or diluted without any public consultation or Parliamentary scrutiny and debate can be found here. This includes the list of provisions which will continue even after Statutory Instrument 445 has expired.

5.      John Radoux has tweeted the response he received (on 24 June) to his freedom of information request to the Department for Education. It can be found here. The Education Secretary’s statement to Parliament on 5 May can be found here.

6.      On 10 June, the then Shadow Education Secretary Rebecca Long-Bailey MP led a motion to annul the Regulations, which was defeated by 260 to 123 votes. The Hansard transcript for that is here

We are raising funds to help cover our costs should we lose this case. Please donate if you can, and share with your family, friends and colleagues.

Review calls for ban of pain-inducing restraint

The Ministry of Justice has today published a review of pain-inducing restraint which is authorised for use on children as young as 10 during their journeys to and from custodial institutions, and within child prisons. The review, led by the former Chair of the Youth Justice Board, Charlie Taylor, was set up after legal action by Article 39.

Charlie Taylor critiques the inclusion of pain-inducing restraint in the system in place since 2012, which is called MMPR (Minimising and Managing Physical Restraint):

“I believe that this places the use of pain-inducing techniques on a spectrum that makes it an acceptable and normal response rather than what [it] should be, the absolute exception.”

He said this “has contributed to the overuse of these techniques that I so frequently witnessed during this review”.

Charlie Taylor’s report makes 15 recommendations, including that:

  • The MMPR restraint training programme should be amended to remove the use of pain-inducing techniques from its syllabus (recommendation 7).
  • That pain is not permitted to be used to end long restraints – staff must always try letting go or changing the hold if a restraint is going on too long. The report recommends that there may, however, be emergency situations where the infliction of pain can be justified to prevent serious harm (recommendation 10).
  • The inverted wrist should only be used to gain control of strong and / or fully-grown children when there is no alternative and there is a risk of serious harm. Staff must move to a lower level hold as soon as possible (recommendation 12).
  • That staff be permitted to use a pain-inducing technique to prevent serious physical harm to either children or adults (recommendation 9).
  • Escort staff should no longer be able to use pain on children. However, Charlie Taylor recommends that there may be exceptional circumstances – when a member of staff is acting in self-defence and in an emergency – where pain may be justified (recommendation 14).

Taylor further recommends that restraint should not be permitted for ‘good order and discipline’ during children’s journeys to and from institutions – which was also part of Article 39’s legal challenge against the Ministry of Justice.

Carolyne Willow, Article 39’s Director, said:

“This is a major milestone in child protection, one we have waited 16 years for since a young boy, Adam Rickwood, wrote a note questioning the legitimacy of pain-inducing restraint before he hanged himself in a Serco-run child prison. Adam was just 14 years-old. An officer inflicted a karate-like chop to his nose, using what was then an official restraint technique – the so-called ‘nose distraction’. He knew what was done to him was wrong, and asked the officers restraining him what gave them the right to hit a child in the nose. It has taken our legal action to finally bring some promise of justice for Adam and other children who have suffered needlessly over many years. 

“We need to see the detail of the legal protections which will be put in place to ensure pain-inducing restraint is genuinely prohibited, and that any emergency, self-defence use of pain complies with common law and the UK’s children’s human rights obligations. 

“There have been many in senior positions over the years who have sought to justify the inclusion of pain-inducing restraint in the MMPR system, and the programme that preceded it. I hope they will take this opportunity to reflect on why it has taken so long for detained children to be given, at least on paper, the same protection from these brutal techniques as their peers in health and social care settings.”

The Ministry of Justice has accepted all 15 recommendations.

Background

In October 2018, following a successful crowd-funding appeal, Article 39 issued judicial review proceedings to challenge the Ministry of Justice’s policy of permitting the infliction of pain and unjustified restraint during children’s journeys to and from secure children’s homes. Children can be detained in these locked children’s homes from the age of 10.

Staff within the secure children’s homes are banned from using pain-inducing restraint. This form of restraint is similarly prohibited in other health and social care establishments.

As a result of our legal action, the government appointed Charlie Taylor, who was then Chair of the Youth Justice Board, to review the authorisation and use of pain-inducing restraint in child prisons (young offender institutions and secure training centres) and during detained children’s journeys to and from institutions. The High Court stayed our application for judicial review in January 2019, pending the outcome of Charlie Taylor’s review and an inquiry by Parliament’s Joint Committee on Human Rights.

Meanwhile, on 28 February 2019, the Independent Inquiry into Child Sexual Abuse (IICSA), recommended:

“The Chair and Panel consider that the use of pain compliance techniques should be seen as a form of child abuse, and that it is likely to contribute to a culture of violence, which may increase the risk of child sexual abuse. The Chair and Panel recommend that the Ministry of Justice prohibits the use of pain compliance techniques by withdrawing all policy permitting its use, and setting out that this practice is prohibited by way of regulation.”

In April 2019, the Joint Committee on Human Rights repeated its call for pain-inducing restraint in child prisons to be banned. A letter from the Chair of the Committee clarified that its recommendation included children’s journeys to and from establishments.

Charlie Taylor’s report was completed and submitted to Ministers last July.

At the end of April 2020, the European Committee for the Prevention of Torture repeated its 2009 recommendation “that the application of pain-inducing techniques on juveniles should be abolished in law and practice”. The United Nations Committee on Torture recommended in 2013 that the the UK ban the use of any technique designed to inflict pain on children.

Adam Rickwood photograph

What gives them the right to hit a child in the nose? – Adam Rickwood, aged 14 years
The devastating effects of pain-inducing restraint on children came to the public’s attention in 2004, when 14 year-old Adam Rickwood hanged himself in a child prison run by Serco. Adam had been unlawfully restrained and inflicted with the ‘nose distraction’ technique, which caused his nose to bleed for around an hour. Officers ignored his pleas to be taken to hospital. Before taking his own life, Adam wrote a note for his solicitor explaining that he had asked officers what gave them the right to hit a child in the nose. The technique was later withdrawn though officers continue to be trained and authorised to use other methods which cause children to suffer psychologically and physically.

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