Concern over suspension of rights safeguard

Last week, the Local Government and Social Care Ombudsman (LGO) announced it was “suspending complaints enquiries of councils and care providers’ in light of the Coronavirus outbreak”. The Ombudsman, Michael King, stated that “we still expect local authorities and care providers to respond appropriately to any complaints they receive during this time”. However, he has admitted that “this may look different to their normal arrangements”.

Kamena Dorling, Article 39’s Head of Policy and Advocacy, said:

“While we acknowledge the real need to alleviate pressure on local authorities at this unprecedented time, Article 39 is extremely concerned about the potential impact of this decision on children and young people in the care system.

We have already been alerted to examples of the complaints procedure at a local level being weakened in recent weeks. This makes the Ombudsman safeguard all the more important.

We would have preferred a triage-based system where at least the most serious cases would be considered for investigation. We will be monitoring the impact of this decision, as well as how statutory complaints procedures are working at a local level, though our advocates network. This is an incredibly stressful time for everyone, which makes it all the more important that vulnerable children and young people can still fall back on established mechanisms to protect their rights.”  

Last year, the LGO made decisions in 1,732 complaints about education and children’s services and 66% of these were upheld.

The LGO has now suspended all casework activity that demands information from, or action by, local authorities and care providers to ‘protect’ their capacity to deliver vital frontline services during the panedmic. Councils and care providers will not be asked to answer enquiries on new or existing cases and cases still in progress will be frozen for the time being. The LGO has stated on social media that it will “be closely observing what happens and if we sense significant levels of injustice arising, we can and will re-engage at any point” but it is unclear how this will be possible without a functioning complaints process.

When services do resume, the LGO has made clear that delays caused by these changes will be taken into account when considering whether or not complaints have been brought within the legal timeframe. Those who have already registered a complaint will be contacted about their case in due course.

LGO complaints can make a huge difference both to individuals and wider policy. This was the case, for example, with the LGO’s finding that Cornwall Council had repeatedly provided inappropriate accommodation for a young person and failed to properly assess the boy’s needs. The boy spent five weeks in a tent, four weeks in a static caravan and several nights sleeping rough after approaching the council for help. The LGO’s recommendations included a review of the council’s procedures for accommodating young people and pushed the council to confirm that it would invest significant funds in accommodation suitable for housing young people.

The Children Act 1989 complaints procedure can also prevent further damage being done by, for instance, ensuring that a decision to move a child in care is frozen whilst the complaint is being investigated.

Recommendations to improve services typically include a review of policies, change to practices, training staff, and awareness raising of issues within the authority and to the public. The LGO can also ask authorities to put things right for people affected by issues found within an investigation but did not complain themselves.

Article 39 is monitoring children and young people’s access to justice via statutory complaints procedures during the COVID-19 pandemic. Please contact our Head of Policy and Advocacy, Kamena Dorling, with any information: kamena.dorling@article39.org.uk.

Joint call for safe release of child prisoners

Earlier this month, Article 39 and others wrote to Justice Secretary Robert Buckland QC MP urging the release of children from prison wherever possible.

Carolyne Willow, Article 39’s Director, said:

“Children need to be with their families or in care settings where their health and well-being can be secured and their fears and questions answered. It’s unconscionable that in a global pandemic a civilised society would keep hundreds of children incarcerated in institutions which in normal times are unable to keep them properly fed, safe and occupied. But this is not just about protecting children from serious harm; we’re also extremely worried about the risks to prison staff, their families and the wider community. These exceptional times demand standout political leadership across all parts of government: children who can be safely looked after in the community must be released.”

The Independent newspaper reported our joint letter here.

Article 39 challenges Ministry of Justice over pain-inducing restraint

Children’s rights charity Article 39 is seeking a tribunal hearing over the Ministry of Justice’s refusal to release information showing why children in prison have been inflicted with pain-inducing restraint. Inspection reports consistently reveal that these brutal techniques are used in non-emergency situations or to make children follow orders.

A year ago, the Independent Inquiry into Child Sexual Abuse said these techniques are a form of child abuse which must be prohibited by law. The Government has yet to respond to the public inquiry’s recommendation. Many other bodies – including the United Nations Committee Against Torture, the UN Committee on the Rights of the Child, the European Committee for the Prevention of Torture, Parliament’s Joint Committee on Human Rights, the UK’s Children’s Commissioners and the Royal College of Paediatrics and Child Health – have said these practices must end.

Ministry of Justice statistics show that staff used authorised pain-inducing techniques on children 260 times in 2017/18. The precise details of what staff are trained to do, other than deliberately inflict pain on children, are not in the public domain. However, the names of the techniques broadly indicate what’s involved – ‘inverted wrist’, ‘outward rotation’, ‘wrist flexion’, ‘thumb flexion’ and ‘mandibular angle’. 

Article 39 made a freedom of information request to the Ministry of Justice, to elicit the “recorded reasons” for the 260 uses of pain-inducing restraint. The department’s restraint safeguarding policy states that this type of technique is subject to a “higher level of scrutiny” and is reviewed by a central team, which includes independent medical advisors. Despite this, the Ministry of Justice refused the FOI request, stating it does not centrally hold the “recorded reasons” for pain-inducing restraint. The Information Commissioner backed the refusal after Ministry of Justice officials told her they would have to contact each child prison and review records from fresh, which would take 85 hours. 

Article 39’s Director, Carolyne Willow, said:

“These techniques have no place in the care of children, and should have been banned a very long time ago. That the Ministry of Justice continues to authorise them and collects statistics on how often they’re used but apparently not why they‘re used is unbelievable. The department’s safeguarding policy rightly indicates that these are very grave techniques which must be subject to rigorous scrutiny. 

“If the safeguarding policy is being followed, the data should be to hand and must be released. Alternatively, if there is no central review of the reasons why officers are causing severe pain to children, then the department should explain when and why it stopped following its own published policy and how it is meeting its duty of care and human rights and equality obligations towards children without such monitoring.”

In October 2018, the Ministry of Justice commissioned the Chair of the Youth Justice Board, Charlie Taylor, to undertake an independent review of the use of pain-inducing restraint. His report is understood to have been submitted to Ministers last summer. Its publication, with the government’s response, has been subject to a number of delays.

Carolyne Willow adds:

“When the current system of restraint in child prisons was launched in 2012, many strongly opposed the inclusion of pain-inducing techniques. Instead, we had a fanfare of promises that the techniques would be used rarely and that they would be subject to rigorous monitoring and scrutiny. We’ve known for a long time that pain infliction is an entrenched form of control in child prisons, and now we’re told it will take civil servants 85 hours to find out why they’re used. This is basic child protection; the information should be at their fingertips.”  

Charlie Taylor’s review of pain-inducing restraint followed the start of legal proceedings by Article 39, which is challenging the authorisation of pain-inducing techniques during children’s journeys to secure children’s homes. Staff working in children’s homes are prohibited from using such techniques. 

Article 39 is also challenging the absence of any regulation around when restraint may be used during children’s journeys to custody, and is seeking confirmation that children aged 11 and below will not be subject to prison restraint techniques which were developed for those aged 12 to 17.

Notes

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

2.      The Information Commissioner’s Office Decision Notice can be found here

3.      Article 39 submitted its appeal to the ICO Decision Notice last week.

4.      The restraint safeguarding policy can be found here (see page 14).

5.      The Independent Inquiry into Child Sexual Abuse’s recommendations (dated 28 February 2019) can be found here.

6.      In 2004, a 14 year-old child, Adam Rickwood, hanged himself hours after being unlawfully restrained, including through the use of a pain-inducing technique (the ‘nose distraction’). He left behind a note explaining that he had asked officers what gave them the right to hit a child in the nose, and they called it restraint. Four months before Adam died, another boy – 15 year-old Gareth Myatt – died after losing consciousness while being forcibly held down in a seated restraint position. Officers ignored his cries that he couldn’t breathe. Both boys were detained in secure training centres. An independent review of restraint was established, and its report published in 2008. This noted that “Almost all submissions to the review passionately argued against the use of any pain in restraint except in life-threatening situations. They supported the abolition of any restraint method which deliberately inflicted pain…”.

7.   In 2008, the Court of Appeal found that the use of restraint on children for non-compliance (‘good order and discipline’) in secure training centres is a breach of their right to protection from inhuman and degrading treatment. The judgment can be found here.

Guardian newspaper report here.

Care for all children in care

Article 39 is working with other charities and social work experts to press for all children in care (up to age 18) to receive care. Current government plans only guarantee this to age 16.

UPDATE, 27 February: we have received data from the Department for Education in response to our freedom of information request. See table below.

Information obtained by Article 39 following an FOI request

The majority of children in care (72%) live with foster carers. A much smaller proportion (8%) of children live in children’s homes. The person responsible for the children’s home must ensure staff follow quality standards, which include that they:

  • Protect and promote each child’s welfare;
  • Treat each child with dignity and respect;
  • Provide personalised care that meets each child’s needs; and
  • Help each child to understand and manage the impact of any experience of abuse or neglect.

Altogether, children’s homes must follow nine quality standards:

  1. The quality and purpose of care standard
  2. The children’s views, wishes and feelings standard
  3. The education standard
  4. The enjoyment and achievement standard
  5. The health and well-being standard
  6. The positive relationships standard
  7. The protection of children standard
  8. The leadership and management standard
  9. The care planning standard

An even smaller number of children (2,790 at 31 March 2019 – 4% of all those in care) live in what’s called semi-independent accommodation (also called supported accommodation). This type of accommodation is currently unregulated, which means providers do not have to register with Ofsted, and there is no independent inspection. Government research (2016) found the main providers of supported accommodation for vulnerable 16 to 25 year-olds to be: housing associations (64%); charities/voluntary organisations (26%); local authorities (5%); and ‘others’ (5%). However, recent Department for Education research found that 77% of semi-independent accommodation for children in care is run by private providers. Local authorities run 10% of provision and charities/voluntary organisations 9%.

Research published by the Department for Education shows that over half (51%) of children in care who live in semi-independent accommodation are from black and minority ethnic communities. There are six times more unaccompanied asylum-seeking children living in semi-independent accommodation than other children in care (36% versus 6%).

The majority of children (70%) in semi-independent accommodation are there under Section 20 of the Children Act 1989 (a voluntary agreement between a local authority and parents and/or the child). Under a third (29%) of children are the subject of a Care Order – where the local authority has parental responsibility for them.

39% of children enter semi-independent accommodation within a week of being looked after by a local authority.

In February 2020, the Department for Education launched a consultation about semi-independent and independent accommodation for children in care. The proposals are:

  • That local authorities are banned from placing children under the age of 16 in semi-independent and independent accommodation.
  • A new legal definition of ‘care’ (though the consultation does not provide one).
  • A new requirement on local authorities to liaise with local police forces when they place children in care in semi-independent or independent accommodation outside the child’s home area. This is to help councils make a “considered judgement” over whether to place children in these settings, or whether extra support or monitoring are required.
  • New national standards for semi-independent and independent accommodation, with each setting “making it clear that it cannot provide ‘care and accommodation wholly or mainly for children’ as it is not a registered children’s home”. Four standards are proposed: the purpose and intent standard; the quality of accommodation standard; the support standard; and the protection of children and young people standard.
  • Two options for putting the standards into practice – a requirement on local authorities to only place children in care in accommodation which meet the new standards (to be checked when Ofsted inspects councils) or a requirement for providers to register with Ofsted, and to be inspected against the standards.
  • A new requirement on independent reviewing officers to visit children in care to assess whether their placement is meeting their needs.
  • A new power for Ofsted to issue enforcement notices to providers of semi-independent and independent accommodation who illegally provide care and accommodation to children (or act unlawfully in other ways).

Article 39 believes all children in care should receive care wherever they live. All children in care are, by definition, vulnerable. Sixteen and seventeen year-olds are children. The Children Act 1989 and the United Nations Convention on the Rights do not differentiate children’s entitlements to care and protection on the basis of age.

There is an alternative to creating a new form of regulated residential setting for 16 and 17 year-olds: modifications to the Children’s Homes Regulations for establishments which provide care and accommodation wholly to those aged 16 and over. This would recognise and respect teenagers’ growing autonomy while ensuring all children in care receive care. Families do not stop caring for children when they turn 16, and neither should the state. This is consistent with the Conservatives 2019 election manifesto promise: “Children who end up in care are more likely to struggle as adults, denied the love and stability most of us take for granted. We will prioritise stable, loving placements for those children…”. Love is impossible without care.

Working from the Children’s Homes Regulations would save civil servants from having to come up with a legal definition of care. Were this a straightforward task, a form of words would surely have been included in the consultation document.

Read the consultation document here.
DfE research documents (February 2020) can be found here and here.