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.

Medway secure training centre

Joint call for closure of Medway secure training centre & secure school

With 35 others, yesterday Article 39 sent a joint open letter to the Justice and Children’s Ministers urging them to close Medway secure training centre and discontinue plans to make it the country’s first experimental secure school.

The move comes after the publication of a serious case review into the centre, and last week’s Ofsted inspection report which revealed children are still being unlawfully restrained there.

Article 39’s Director, Carolyne Willow, said:

“Whenever there is institutional failure stretching back many years, there comes a point when someone in charge has to take decisive action and say ‘enough is enough’. The serious case review and the latest inspection report show deep fault lines in protecting children.

“If this child prison was a children’s home or a school, its gates would have been closed shortly after the shocking BBC Panorama exposé of physical and emotional abuse three years ago.

“Ministers must stand up to the false optimism that the institution can reform itself, and local and national agencies will properly scrutinise and protect children. The continuing revelations show that this is not possible. A change of name to secure school and a small refurbishment is not going to address the systemic failings. The centre must be closed for good.”

 

Medway secure training centre

Systemic and serious child protection failures – G4S and Medway Safeguarding Children Board

Medway Safeguarding Children Board has this afternoon published the serious case review it commissioned into the abuse of children in G4S-run Medway secure training centre, which was exposed by a BBC Panorama programme in January 2016.

Carolyne Willow, Article 39’s Director, said:

“This review confirms what millions of us watched on the BBC Panorama programme: that G4S failed to protect children from staff violence and cruelty. The new revelation is that the local systems for protecting children in this institution were utterly ineffective and at times expressly working against keeping children safe. 

“The extent to which local authorities are left to create their own arrangements for responding to institutional abuse allegations cannot be right. Nor is it acceptable that so much onus is placed on children to know they are being mistreated and to seek help.

“The serious case review highlights that children’s past experiences can affect their recognition of abuse, and their confidence in speaking out. But there are also very powerful institutional factors which influence both children’s and adults’ perceptions of what is tolerable or not, and the actions they take.

“There is a compelling and urgent need for government guidance on keeping children safe in institutions.

“Much is missing from the serious case review, including the alleged sexual abuse found by the local authority and submitted to the Independent Inquiry into Child Sexual Abuse last summer. Only a small number of children were interviewed and parents appear not to have been involved at all. The police went back to 1998 in their investigation, and the Guardian newspaper reported abuse claims going back to at least 2003, yet the serious case review only starts at 2014. Given the very serious and systemic local failure to protect children, Ministers must now revisit their decision to convert Medway secure training centre into their first experimental secure school.”   

The serious case review commenced in July 2017, 18 months after the Panorama programme and a year after management of the secure training centre was transferred from G4S to Her Majesty’s Prison and Probation Service. Its time-frame was 2014-2017.

The serious case review shows:

Excessive physical restraint and victimisation of especially vulnerable children
The small number of children who were interviewed as part of the review (13 by telephone and 7 face-to-face) reported “excessive” physical restraint; staff deliberately using physical restraint out of sight of CCTV; and some staff more frequently using restraint which deliberately inflicts pain on children. Children who were especially vulnerable were victimised by staff. The serious case review states: “staff had picked on children who appeared vulnerable. This included children who did not speak English or were comparatively young or withdrawn or had no extremal family support”.  Barking and Dagenham local authority reported to the serious case review that one of its children detained at Medway secure training centre had been stopped from seeing their social worker alone.

Reporting of crimes against children “stymied”
Before the police investigation set up after the Panorama programme, “the reporting of crimes committed against children at Medway STC can be described as “stymied” in that their progress had been prevented/hindered”. There was a “limited police response to previous allegations from or about children at the STC”.

Children regularly taken to A&E
90 children were taken to A&E from Medway secure training centre during the three-year period under review (the review does not state whether this was as a result of injuries from restraint or self-harm, or other reasons). A&E staff did not contact children’s next of kin or social workers in respect of children in care; this was left to custody officers to do.

“Erratic and ineffective” local authority oversight of child protection, with “serious and undetected deficiencies”
The local authority designated officer (LADO) function – responsible for monitoring and overseeing investigations of staff working with children – was “erratic and ineffective”. Referrals were not passed to the local authority’s child protection social workers to investigate; instead LADO staff carried out investigations themselves.

The focus “appeared to be proving if the allegation could be substantiated or not, rather than understanding the behaviour of the adult as possibly harmful, criminal or suitable and managing the potential risk of that behaviour towards children reoccurring and causing harm”.

This arrangement – known as the ‘Medway way’ – led to “few [child protection] strategy discussions, interviews with children were not undertaken by those professionals who best knew the child from their home authorities, management oversight and supervision were poor, policies were not followed, regular liaison meetings were not held and responses were slow and did not provide sufficient challenge to the staff and management at Medway STC. There was no operational practice guidance on the management of allegations in the procedures and the approach to the line management of the LADO who may have a specific expertise unfamiliar to most other staff including the line manager appears to have contributed to some serious and undetected deficiencies… It was not until 2016 that these began to be detected”.

Local Safeguarding Children Board did not act on Ofsted concerns from 2014 and 2015 and failed to challenge inadequate arrangements for protecting children in Medway secure training centre
Ofsted recommendations in respect of child safeguarding monitoring and oversight, in 2014 and 2015, “were not apparently followed up in a timely manner and the Medway Safeguarding Children Board did not challenge the quality of the LADO annual reports or other performance information it received”.  The “lack of proper analysis of allegations being presented to the [Medway Safeguarding Children Board] was a missed opportunity for challenge”.

Barnardo’s told it couldn’t refer child protection concerns to the local authority
Against requirements in government safeguarding children guidance, a contract between the Youth Justice Board and children’s charity Barnardo’s “expressly did not allow” independent advocates to refer concerns about child protection directly to the local authority. This was only rectified in July 2017 – 18 months after the Panorama programme. When Barnardo’s advocates supported children to make complaints about “how staff acted during restraints”, there was no requirement on G4S to inform the charity of the outcome of these complaints. Barnardo’s advocates were contracted to be in the centre 17 hours a week, yet they were not given a private office in which to meet children.

Barnardo’s advocates no longer see every child after they have been restrained
The year after the Panorama programme, the crucial safeguard of advocates meeting children after each restraint incident, to offer them help, was removed. This protection was first established following a coroner’s recommendation after 15 year-old Gareth Myatt died of positional asphyxia following restraint by three G4S officers in a different secure training centre. Since July 2017, advocates working in Medway secure training centre have not been required to be “physically present to offer advocacy” if a child has been previously restrained.

No recommendations for G4S
The individual management review undertaken specifically in respect of G4S identified not a single recommendation for the security company, which ran the centre between 1998 and 2016, and continues to run two other child prisons – Oakhill secure training centre in Milton Keynes and Parc young offender institution in Bridgend, Wales.

The serious case review makes a general recommendation “that G4S should consider the learning from their own IMR process and the overall learning in this SCR and consider implementation in its other service provision in the secure estate”.

G4S failed to hand over all of its staff records
When the prison service took over the running of Medway secure training centre, G4S failed to hand over “some locally stored staff records” and “local supervision records”. Although not mentioned in the serious case review, this echoes G4S’s failures to hand over information requested by the Independent Inquiry into Child Sexual Abuse last summer.

Youth Justice Board focused on contracts not children
Youth Justice Board monitors focused on contract compliance “as opposed to the safety and welfare of children” and “before December 2015, both internal monitoring and external reports on Medway STC had not signaled concerns about the treatment of children by staff”.

There are very significant omissions in the published serious case review:

  • There is no chronology showing when concerns were raised, and by whom; and the nature of concerns.
  • There is no overview of the children detained in Medway STC during the three-year time frame – their ages and other demographic information, a profile of their needs, and so on.
  • There is no data on child protection referrals, complaints, disciplinary action, restraint injuries and other serious incidents during the three-year time frame.
  • It lacks a full description of what was shown in the Panorama programme which led to the serious case review being commissioned, and the STC moving from G4S management.
  • We are not told what action the local authority and other agencies took immediately in response to the Panorama programme to safeguard and promote the welfare of the children who were shown on the programme being abused.
  • The review states there were no criminal convictions of G4S staff following the Panorama programme, but we are not told whether there was any disciplinary action taken by G4S, the local authority, the Youth Justice Board or any other agencies.
  • None of the evidence before the Independent Inquiry into Child Sexual Abuse last summer – including the very serious concerns reported by the social worker appointed by the local authority to, among other things, review the full Panorama footage – is mentioned in the serious case review, let alone considered. This is a very serious omission.

About serious case reviews
Serious case reviews are set up when a child has died or “has been seriously harmed and there is cause for concern as to the way in which the authority, their Board partners or other relevant persons have worked together to safeguard the child”.

Statutory guidance on serious case reviews for the time period stated: “when things go wrong Serious Case Reviews (SCRs) are published and transparent about any mistakes which were made so that lessons can be learnt” (Working Together to Safeguard Children, 2015).

'Myth busting', Children's rights, Children's social care

Article 39 threatens legal action to protect vulnerable children

Article 39 has written to the Secretary of State for Education and government lawyers threatening a judicial review if a misleading document about local authority duties towards vulnerable children is not withdrawn.

The document, produced by the Department for Education’s children’s social care innovation programme, claims to expose myths in common understandings of council legal obligations towards vulnerable children. But Article 39, together with other children’s law experts, has identified numerous errors and misrepresentations of the statutory framework for children’s social care.

For example, councils are advised that they can reduce visits to children in long-term foster care to twice a year, yet the law states this is only permissible if the child gives their consent. This ensures young children, and other children unable to understand the implications of relaxing council monitoring of their care, continue to be visited regularly by social workers.

Most of the so-called myth-busting topics concern the protection given to children in care such as the frequency of visits from social workers, who is responsible for planning and supervising children’s care and the support given to foster carers. A series of questions are posed with advice from the Department for Education about the minimum actions they are allowed to take.

Freedom of information requests made by Article 39 have revealed that Ofsted disagreed with the innovation programme’s advice on council duties in respect of providing children and foster carers with their own social workers in the case of long-term placements (where a child has lived with the same family for at least a year).

Ofsted told the innovation programme that “The interpretation of all local authorities to date of the statutory guidance is to have two social workers – one supporting the child and the other the foster carers”, and that to reduce this to one would be “removing a significant safeguard for children in foster care”.

Despite this warning from the children’s social care regulator, the document was published with advice to councils that statutory guidance does not require them to give fostered children and foster carers different social workers.

An earlier draft of the document said it was agreed by Ofsted but this text was diluted to “in consultation with Ofsted” following the clash.

Elsewhere the document states that children who have run away should be offered an interview with someone independent after they return, yet existing statutory guidance is stronger than this because it says this safeguard must be offered.

Statutory guidance states that foster carers must receive at least one unannounced visit at home each year in addition to other visits and support from social workers. Clearly in conflict with this, the ‘myth busting’ document refers to just one visit a year as the minimum.

A joint letter was sent to the Children’s Minister Nadhim Zahawi MP last year, setting out the legal inaccuracies in the document. Fifty charities and social work experts urged the Minister to withdraw parts of the document that conflict with existing legislation and government guidance, because of the serious risks to children.

Labour’s Shadow Children’s Minister Emma Lewell-Buck MP also challenged the Minister in the House of Commons, accusing him of “cutting vulnerable children adrift”.  A further request that the Minister withdraw the document or at least meet with concerned charities was rejected.

Carolyne Willow, Article 39’s Director, said:

“It is not good enough for the Minister to say there have been no changes to the law and statutory guidance while at the same time leaving in circulation a document which indicates otherwise. Council duties towards vulnerable children cannot exist and not exist at the same time.

“We are a small charity and taking legal action is inevitably risky financially but we cannot stand by and leave it to vulnerable children to have to go to court to defend the rights that Parliament and successive governments have given them.”

Copies of emails released by Ofsted show that the myth busting document originated from a meeting of the innovation programme, Ofsted and a small number of local authorities in 2017. That year the Department for Education sought to press through legislation which would have allowed individual councils to opt out of their social care duties towards children and families.

Over 108,000 members of the public signed an online petition opposing what came to be known as the exemption clauses in the Children and Social Work Bill. Peers voted them out of the legislation but a revised set of clauses were inserted when it returned to the House of Commons. These were removed from the Bill in their entirety after the then Education Secretary Justine Greening MP added her name to opposition amendments to delete them, in the face of widespread criticism that the plans undermined the rule of law and child protection.

Article 39 is represented by Oliver Studdert, Partner in Public Law at Simpson Millar, and Steve Broach, barrister at Monckton Chambers.

Children's rights, Independent advocacy

John Kemmis: a man children could always depend upon

John KemmisIt is with tremendous sadness that we mourn the loss of John Kemmis, who died with his family by his side yesterday afternoon.

We also celebrate who John was, what he stood for and what he gave to children.

Maria, 54, met John when she was 3 or 4 years-old and first went into care. John was Maria’s social worker. She said:

“There were two incredibly kind people that I remember and cherish from my childhood, one was the cook from the children’s home and the other was John. I will never forget him.”

John was a “really significant” person in Hiwet’s life. Now aged 38, she came to the UK as a child refugee and it was only through having an advocate that she was able to be fostered and move from her children’s home. Hiwet has many lovely memories of working with John at Voice for the Child in Care (now known as Coram Voice), and thinks of him with love and happiness.

Article 39’s national campaign to strengthen children’s independent advocacy was John’s idea. His vision and determination led to a Parliamentary roundtable in June this year, after which the Children’s Commissioner for England established an Advocacy Working Group which will report early in 2019.  Nearly 50 organisations now back our campaign, whose goals were crafted by John.

Carolyne Willow, Article 39’s Director, said:

“John was a man of deep principle and purpose. He stood by children because he believed in them. He saw and felt the injustice of children not being heard, not being believed and not being helped. Then he translated what he saw and felt into action. And brought others with him. Over many years.

“John was an exceptionally kind and warm human being. His smile was energising and his commitment motivating. If we in the charity world are allowed to have comrades, then John Kemmis was my comrade. His work and legacy goes on.”

You can read more about John’s 50+ year career in social work and children’s rights here (published by the British Association of Social Workers).

In October 2018, John was the inaugural winner of the Stand Out Children’s Advocacy Award. Read more here.