High Court rules long-term detention of teenager was lawful

This was a hearing to establish whether the long-term hospital detention of a teenage boy was lawful.

By the time he was eight years old, the boy had been diagnosed with Attention Deficit Hyperactivity Disorder, Asperger’s Syndrome and Tourette’s syndrome. At the age of 14, and in view of continuing challenging behavior, his parents sought a mental health placement, and he was subsequently admitted to hospital and placed in a locked ward. He had been detained for 15 months by the time of the full hearing.

Mr Justice Keehan rejected arguments made by the local council that this did not amount to deprivation of liberty:

“The protection of Article 5 of the [European Convention on Human Rights (ECHR)] and the fundamental right to liberty applies to the whole of the human race; young or old and to those with disabilities just as much to those without.”

However, he ruled that the boys’ parents acted within the perimeters of parental responsibility in consenting to his long-term detention.

The mental health trust argued that the parents should not have been able to consent to the boys’ detention, and this was a matter for the state – particularly as they were unable to care for and accommodate him. Hospital doctors were “uneasy about caring for and depriving a child of his liberty, given the length of time and given his age”, the trust explained.

The judge did not accept these, and other, arguments. He praised the actions of the boys’ parents, who had their son’s best interests at heart throughout. Had the boy not been disabled, the detention “would probably amount to ill treatment”:

“The decisions which might be said to come within the zone of parental responsibility for a 15 year old who did not suffer from the conditions with which D has been diagnosed will be of a wholly different order from those decisions which have to be taken by parents whose 15 year old son suffers with D’s disabilities. Thus a decision to keep such a 15 year old boy under constant supervision and control would undoubtedly be considered an inappropriate exercise of parental responsibility and would probably amount to ill treatment. The decision to keep an autistic 15 year old boy who has erratic, challenging and potentially harmful behaviours under constant supervision and control is a quite different matter; to do otherwise would be neglectful. In such a case I consider the decision to keep this young person under constant supervision and control is the proper exercise of parental responsibility.”

The boy turned 16 soon after the hearing, and his detention would, from that point, come under the ambit of the Court of Protection. But this case further highlights the lack of safeguards for children deprived of their liberty on the direction of parents, and the particular vulnerability of disabled children.

It does not appear the guardian representing the child in the hearing addressed his human rights, under the ECHR or the UN Convention on the Rights of the Child and the UN Convention on the Rights of Persons with Disabilities (the latter provides that “the existence of a disability shall in no case justify a deprivation of liberty”). The judge said the guardian “confined her submissions to observations that [the boy] was well placed at Hospital B and was progressing”.

Read the judgment.

Safeguarding guidance reinstates duty to review restraint in child custody

Revised government guidance has reinstated the duty on Local Safeguarding Children Boards to include a review of restraint in custodial establishments in their annual reports. These reports must be published and are therefore available to the public. Copies of the reviews must be sent to the Youth Justice Board.

The duty was included in the 2010 guidance but omitted from the 2013 version.

Two children died following unlawful restraint in secure training centres in 2004.

Fifteen year-old Gareth Myatt was forcibly held down in a seated position in the G4S-run Rainsbrook secure training centre. Officers ignored his cries that he couldn’t breathe and he was dead within six or seven minutes.

Fourteen year-old Adam Rickwood hanged himself after being restrained at the Serco-run Hassockfield secure training centre. Adam had been inflicted with the “nose distraction”, a sharp blow to the nose, which Ministers eventually banned after receiving a highly critical report from the European anti-torture committee.

Despite the positive reinsertion of the duty to review restraint, the latest safeguarding guidance continues to omit any reference to restraint in its definition of physical abuse. Following the deaths of Gareth and Adam, the 2006 version of the statutory guidance acknowledged that physical abuse could include “inappropriate or inexpert use of physical restraint”.  This was deleted from the 2010 document, and the two subsequent versions.

Read the 2015 safeguarding guidance here.

Human rights committee inquiry report

The joint committee on human rights, parliament’s scrutiny body on human rights, has concluded its inquiry on the UK’s compliance with the UN Convention on the Rights of the Child. It raises a number of concerns relevant to children living in institutional settings.

The committee says the UK’s failure to accept the UN complaints mechanism for children’s rights diminishes children’s access to justice. It urges the UK to ratify the optional protocol to the Convention on the Rights of the Child on a communications procedure. Seventeen UN member states have done so already.

Particularly pertinent to institutional settings is that the mechanism allows complaints to be made on behalf of children. Children living in institutions are among the most vulnerable in society, and many are unable to voice concerns themselves (for fear of victimisation or because of their young age or disability, for example).

Another justice gap is the continuing ban on the Office of Children’s Commissioner investigating individual cases. Children’s Commissioners in Northern Ireland, Scotland and Wales have such powers. England’s Commissioner is able to investigate cases where the child is looked after, or was looked after. But this excludes many others who live in institutional settings (prisons, mental health inpatient units and immigration detention for example). The committee recommends the incoming government reviews how the Commissioner could be given wider investigatory powers.

Next the committee concludes children have “suffered disproportionately” from government austerity. It did not examine the links between poverty, lack of community support and children being placed in institutional settings, though this is clearly relevant. Official data shows 30 children in England entered local authority care last year primarily because of family low income (50% more than in 2013).

Withdrawing legal aid from very vulnerable children and families has made “a significant black mark” on the government’s compliance with human rights, and the incoming government should “undo the harm”, the committee concludes.

Article 39’s Director had submitted evidence to the committee on successive government failure to implement the recommendations of the UN Committee on the Rights of the Child in relation to child custody. We therefore welcome the human rights committee’s strong recommendation for reviews of both the use of physical restraint, and the methods of restraint that have been authorised for use in child custody. In relation to the age of criminal responsibility, the committee implores the incoming government to review all age-based legislation, including that which is “controversial”. Clearly, the age of criminal responsibility is linked to the use of child prisons: countries that do not criminalise their children early have much lower numbers incarcerated.

On the rights of disabled children, the committee expresses concern at the provision in the Children and Families Act 2014 (carried over from previous legislation), which disentitles disabled children from a place in a mainstream school when this affects the “efficient education” of other children, or “the efficient use of resources”.

The committee welcomes the “significant decline” in the number of children held in immigration detention, though makes no recommendation about ending this altogether.

Finally, the committee urges the government to include scrutiny of the detention of children in military prison in a wider review of the use of children in the armed forces. The UK remains the only country in the European Union, the Council of Europe and the UN Security Council to recruit children into the armed forces from the age of 16.

Read the report here.

Safeguarding report published following death of Ryan Clark

Leeds Local Safeguarding Children Board has published part of its serious case review into the death of 17 year-old Ryan Clark in Wetherby young offender institution. Ryan was on remand, which means he had not been convicted of the offence that led him to prison. He hanged himself after just 20 days.

Serious case reviews must be undertaken when a child dies in custody. The statutory reason for these reviews is to identify the lessons to be learned.

In care from the age of 16 months, and still the responsibility of Leeds city council at the time he was remanded, Ryan had not had a “stable placement” since the age of 13.

The serious case review points to many failings by many agencies, including a notable lack of curiosity about why Ryan’s behaviour was so difficult. The author observes, Ryan’s “overall behaviour conveyed a sense that he did not value himself”.
There is no exploration in the report of the legal and ethical justifications for sending such a vulnerable child to prison.

Read the report here.

What’s the point of children complaining?

The Local Government Ombudsman (LGO) published a short report yesterday (10 March) giving the results of its survey of councils about the children’s social care complaints procedure. It includes five case studies where complaints were not investigated or resolved properly by local authorities. One of the complaints came from a 17 year-old girl who ran away from home because of abuse by her father. Children’s services refused to help her, telling her to return home or stay with a friend. It failed to follow its legal duties to assess her as a ‘child in need’ or provide her with accommodation as a ‘looked after’ child. The girl made a complaint under the Children Act 1989 procedure, and received two apologies – though no response to the main issue, which was the lack of support provided by the council. With the help of an advocate, the girl contacted the Local Government Ombudsman and her complaint was upheld.

Councils taking part in the LGO survey reported that the majority of individuals using the statutory complaints procedure are adults, not children. The LGO reports that many councils see this ‘as evidence that the process isn’t supporting the people it was designed to benefit’. More than 20 years after the statutory procedure was introduced, partly in response to the children’s homes abuse revelations of previous decades, this is a very depressing finding. It shows local authorities still have a great deal to do to inform children of the procedure; reassure them their complaints will be dealt with swiftly and fairly; and to ensure that complaints are an effective mechanism for identifying where the law is not being upheld, and quickly rectifying this. Even with the assistance of an advocate, the 17 year-old in the case study was unable to obtain the support from social care she is legally entitled to and had to take her complaint to the LGO. What a disincentive to other children. The LGO observes that ‘some question the best use of public funds when costs for [the independent element of social care complaints] can run into thousands of pounds for each complaint’. In human terms, the cost to extremely vulnerable children of not receiving the protection and services to which they are entitled can be devastating, as recent reviews in Rotherham, Rochdale and Oxfordshire make clear.

Since April 2014, the Children’s Commissioner for England has been empowered to give advice and assistance to children living away from home and receiving social care services in England. The advice line is open weekdays 9am to 5pm: 0800 528 0731.