Article 39 and The Care Leavers’ Association join forces to defend child protection rights in the Supreme Court

13 July 2018
Article 39 and The Care Leavers’ Association have been granted permission to intervene in a case (CN v Poole), which will be heard in the Supreme Court on 16/17 July.

We jointly applied to intervene because we are extremely concerned about justice being denied to the children, young people and adults we serve. We believe the wrong decision in this case could prevent those who have experienced abuse in care and custodial settings from being able to seek legal redress and compensation.

In December 2017 the Court of Appeal dismissed an appeal made on behalf of two individuals who, as young children, were subject to serious harassment and abuse from a family that lived close to their home.

The children were cared for by their mother. Their accommodation had been arranged by Poole housing authority, which was aware of their neighbours’ persistent anti-social behaviour.

CN has severe physical and learning difficulties. When he was aged 9, he tried to take his own life because of the serious abuse he suffered from the nearby family.

The Court of Appeal rejected arguments that Poole Borough Council should have used its Children Act 1989 powers to protect the young brothers from harm, perhaps even by temporarily moving them from their mother’s care.

But the court went much further. It decided that local authorities can no longer be held liable for negligence when a child has suffered harm due to their failure to act. Such claims had been possible since 2003.

Article 39 has longstanding concerns about the difficulties children in institutional settings face in reporting abuse, being believed and receiving care and support to help them recover from mistreatment.

We asked all English local authorities to provide us with information about allegations against staff working in institutional settings. Of those that provided detailed data – 34 councils – we found that only 24% of 1,389 allegations resulted in an official child protection investigation.[i]

When councils undertake child protection investigations they are under a duty to listen to the child. They must consider taking action to safeguard or promote the child’s welfare. A child who has been abused or suffered some other trauma may need counselling, extra help with their education and/or changes within their living environment and daily care. If councils fail to act to protect a child from institutional abuse, this can have devastating and long-lasting consequences.

The Care Leavers Association has numerous first-hand accounts from adult care leavers of abuse they have experienced as children in the care system. Over recent decades there have been many enquiries focusing on such abuse of looked after children. Such abuse – whether physical, sexual, emotional or through neglect – can have severe effects on a person, both at the time and throughout their later adult life.

If the Court of Appeal’s decision is upheld by the Supreme Court it could, at its worst, remove the duty of care from local authorities in respect of all child protection functions. This would have a disproportionate effect on looked after children, and on adults who were in care or custody as children. We need to revert to the 2003 position to ensure accountability where professionals and organisations failed to take appropriate action to prevent or stop abuse. Being able to pursue a claim for negligence can achieve a real sense of justice and provide a route to some financial compensation that helps to address the long-term consequences of abuse in childhood.

Carolyne Willow, Article 39’s Director, said:

“We are delighted to have been given permission to intervene in this very significant case. With The Care Leavers’ Association, we want to help the court consider local authorities’ obligations under the Convention on the Rights of the Child and to understand the terrible impact that abuse can have on children, especially when they have tried to seek help but are ignored and left to cope alone with profound psychological pain, isolation and confusion. We appreciate that local authorities are under great financial strain but children’s rights to safety and recovery must be robustly defended.”

David Graham, National Director of The Care Leavers’ Association, said:

It is incomprehensible that a local authority would not face the legal consequences for not doing enough to prevent abuse and neglect to young people in care. But the important thing to remember is this is not just about blame, or legal outcomes. It is about the lives of many young people and adults affected by abuse and neglect experienced as children. It is essential that they have legal recourse to challenge the decisions and omissions that facilitated those damaging experiences. We are determined to work with Article 39 and our legal team to right this wrong.”

[i] Undertaken under Section 47 the Children Act 1989. Section 47 requires local authorities who have reasonable cause to suspect that a child in their area is suffering, or is likely to suffer, significant harm, to make enquiries to enable them to decide whether they should take any action to safeguard or promote the child’s welfare. Article 39’s freedom of information request was made in 2015 and local authorities were asked to provide data for the preceding three years.

Article 39 and The Care Leavers’ Association are represented by Oliver Studdert and Peter Garsden from Simpson Millar Solicitors and Aswini Weereratne QC, Caoilfhionn Gallagher QC and Nicholas Brown from Doughty Street Chambers.

PLEASE NOTE: If you have been abused in care or custody, or anywhere else, the criminal law has not changed and your right to bring a claim under the Human Rights Act 1998 is also not affected by this case.

First restraint legislation passed by MPs

Article 39 is delighted that the Mental Health Units (Use of Force) Bill has passed through the Commons. We have been working on the Bill all this year, as part of a coalition of mental health and human rights charities co-ordinated by YoungMinds. This is the first standalone law in the UK specifically designed to protect children and adults from abusive restraint.

After filibustering by two MPs, Philip Davies and Christopher Chope, last month, the Private Members’ Bill was genuinely under threat. However it passed without objection today (6 July), after which it received a round of applause by MPs present in the Chamber.

Watching the proceedings was the family of Seni Lewis, who died in 2010, aged 23, after being restrained by up to 11 police officers who were called to his hospital. In a moving tribute, Steve Reed MP, whose Private Members Bill it is, said the legislation will be “a lasting and proud legacy for Seni Lewis”.

At earlier stages, Article 39 pressed for parents or others with parental responsibility to be notified when a child patient is restrained. This was extended to all patients and is included in Clause 6 of the Bill. We also wanted the impact of restraint on a child’s development to be included in the Bill’s training requirements: this is contained in Clause 5 (covering all ages).

Other priorities, which we plan to continue to pursue when the Bill enters the Lords, include a prohibition on restraint techniques deliberately designed to inflict pain; patients to be informed of the techniques used in their unit; the recording of the patient’s perspective after each use of force; and patients to be informed of their right to independent advocacy.

 

 

“It’ll tell you everything”

rights4children-logo-web

A brilliant new website for children and young people living in institutions goes live at 4pm today.

Called rights4children, the site is packed with information about children’s rights, on topics important to them. It has been created by Article 39 working with the web design company Wholegrain Digital.

Forty-eight children and young people, aged between 10 and 20 years, gave expert advice on the content and design of rights4children.

Children and young people living in Lincolnshire secure unit and William Henry Smith residential school were closely involved in the development of the site for several months.

Ten year-old Bailey said:

“Go and check the website, it’ll tell you everything”.

Erson said:

“It would have been useful to have a website like this when I first arrived at my secure children’s home”.

“I think the information in this website would allow me to make better choices if I felt I was being unfairly treated” added Tyler.

Content is organised into four sections – ‘Your life, your feelings’‘Where you live’‘When things are difficult’ and ‘Moving and leaving’ – and covers a wide variety of children and young people’s concerns, from pets, to privacy, to food and special diets, to restraint and use of force and making a complaint.

The site launches with stories of six adults who spent time in institutions as children. They reflect on what helped them get through tough times. This part of the site was added after many children and young people communicated they want to have hope that life can get better for them.

David Hunt from Wholegrain Digital said:

“The visual design aims for a warm and caring environment whilst keeping the mood positive, fun and engaging for all age groups. We are so pleased to have worked with Article 39 to bring a simple-to-use website to the children who need it the most.”

Carolyne Willow, Article 39’s Director, said:

“Children who live in group settings have the right to a great childhood, where they feel loved, respected and proud of who they are and their achievements. But life can be really tough for many children living away from home, and rights4children aims to be there for them – telling them about their rights and where they can get help. We’re hoping adults will use the site too, because there can never be too many people standing up for the rights of children.”

Notes

  1. The site can be found at www.rights4children.org.uk
  2. A young person detained in Cookham Wood young offender institution came up with the site’s name.
  3. Our site would not have been possible without the expert advice of children and young people, and support from adults who look after them. THANK YOU. A full roll of honour can be found on the site.
  4. Article 39 is very grateful to the Esmée Fairbairn Foundation and The Bromley Trust who fund our work.

Action taken on child’s note – nearly 14 years on

On 8 August 2004, 14 year-old Adam Rickwood was found hanging in his cell in a child prison run by Serco.

In addition to a note for his family, asking to be buried with his grandad, Adam left behind a statement explaining that officers had deliberately swiped his nose, and that he bled for nearly an hour.

Adam asked the officers what gave them the right to hit a child in the nose.

Today, nearly 14 years later, the Ministry of Justice (MoJ) set out its plans for a new type of locked institution – the secure school.

The MoJ document says pain-inducing restraint will not be permitted.

The ‘nose distraction’ inflicted on Adam was an officially authorised restraint technique. It was withdrawn three years later from the privately-run secure training centres, and from all child prisons in 2010/11. But other pain-inducing restraint has continued.

Article 39 has been campaigning to end pain-inducing restraint since we first set up as a charity. With the backing of nearly 200 donors, we have been threatening to take the Ministry of Justice to court to get the authorisation of pain-inducing restraint lifted during children’s journeys to and from secure children’s homes. We believed we were on firm ground since the Department for Education prohibits pain-inducing restraint within secure children’s homes.

Today’s publication indicates the government department in charge of child prisons has finally conceded that allowing and training those who look after children to deliberately inflict severe pain as a form of restraint is unjustified.

Adam’s statement was published by the Guardian newspaper in June 2007.

Adam Rickwood's statement

 

 

Child protection arrangements improve at prison, say inspectors

An inspection report published today (9 May) states the London Borough of Hounslow has improved its child protection scrutiny and action in response to abuse allegations from boys in Feltham prison. This has previously been an area of great concern for Article 39.

The report says inspectors “found examples of improvements to safeguarding practice as a direct result of the oversight provided by the local authority” and children who made abuse allegations were “well supported”.

In the six months prior to the inspection, which was undertaken between December and January 2018, 25 child protection referrals had been made to the local authority from the prison. Most of these related to the use of force and inspectors comment that all of them “were appropriate”. The report does not indicate the outcome of these referrals.

Inspectors report there had been 17 uses of pain-inducing restraint in six months. This is where officers deliberately inflict pain on children – a practice condemned by many bodies including the UN Committee Against Torture.

The segregation unit remained a “grim environment”:

Cells [in the segregation unit] were stark and poorly furnished and many were dirty. Communal areas were dirty and shabby. Conditions in the special accommodation cells (stark, unfurnished cells with no beds, toilets or sinks) were particularly grim. Use of these cells had reduced since the last inspection from 14 to four instances, but we were not assured that use was justified on every occasion…

Staff treated boys well and we saw examples of angry boys being dealt with patiently by calm officers. However, the regime was impoverished and remained punitive. Boys had limited access to telephone calls, showers and exercise which mirrored poor regimes in adult segregation units. Boys were not permitted televisions and had little access to education facilities.

Most boys in other parts of the prison were allowed out of their cells just seven hours a day. They could exercise only 30 minutes every morning. Boys were not always able to have a shower or make a telephone call every day.

Of 25 recommendations relating to children’s safety made at the last inspection, early in 2017, 14 (56%) had been achieved, 9 (36%) had not been achieved and 2 (8%) were partially achieved.

Carolyne Willow, Article 39’s Director, said:

“Despite some improvements in child protection scrutiny, the reality remains that boys are incarcerated in conditions utterly unsuitable for children. While reading the report, especially the section on Feltham’s segregation unit, the thought once again came into my mind that these graphic descriptions of the harms inflicted on children will appear one day in an official inquiry report. People will look back in shock and shame that we ever treated children this way.” 

Read the full report here.