Amendment 107 Clause 139, page 128, line 22, at end insert— “(8) A local authority may establish and maintain a secure 16 to 19 Academy.”

Article 39 children’s rights charity urges MPs to vote to protect amendment 107:

• Secure 16 to 19 Academies will be a legal hybrid of secure children’s homes and 16 to 19 Academies. Local authorities are the only organisations in England with proven expertise in managing secure children’s homes which care for, protect and educate remanded and sentenced children. Latest inspection judgements for England’s 13 secure children’s homes show that 85% are outstanding (23%) or good (62%).^[1] All secure children’s homes looking after remanded and sentenced children are run by local authorities as part of their children’s services (there is another secure children’s home run by a charity but this only looks after children sent there by the family court^[2]).
• Secure training centres, established in 1998 with only one centre remaining and subject to a recent urgent notification, have been an unremitting child protection failure. They were outsourced from the start. Two children died in 2004 following restraint, the High Court found there had been a regime of unlawful restraint across a period of at least 10 years and three of the four centres were closed mired in scandal. 
• Ministers state there is no legal bar to local authorities running the new secure 16 to 19 Academies, yet they were excluded from the tendering process for the first secure school (now named secure 16 to 19 Academy) and their expertise could be shunned again should government policy change. Academies are run outside local authorities; councils must cease to maintain a school once an Academy order has been made.^[3] There is speculation that the government may allow local authorities in future to run multi-academy trusts.^[4] This does legally clarify the position of local authorities vis-à-vis the secure 16 to 19 Academies; it is for the Police, Crime, Sentencing and Courts Bill to do that. 
  

Background 

The government committed in December 2016 to phase out juvenile young offender institutions and secure training centres and to replace them with a network of secure schools. These have since been renamed secure 16 to 19 Academies. Legally, they will be approved by the Secretary of State for Education as secure accommodation, and are defined in this Bill as secure children’s homes. 

In 2019, the Ministry of Justice contracted Oasis Charitable Trust to run its first experimental secure school (now called secure 16 to 19 Academy).^[5] This is due to open in 2023.^[6] Local authorities were not permitted to tender for this contract. This was criticised by the Local Government Association which highlighted the “significant expertise [of local authorities] in youth justice and success in running SCHs”.^[7]

Prior to the vote in the House of Lords, on 10 January, the Minister Lord Wolfson of Tredegar stated:

I accept that the government’s policy remains that academy trusts are not local authority-influenced companies and that our position on secure schools is to mirror academies’ procedures. However, I can confirm that, when considering the market of providers of future secure schools, my department will assess in detail the potential role of local authorities in running this new form of provision. We of course recognise … that local authorities have a long-established role in children’s social care and the provision of secure accommodation for children and young people. In particular, the secure children’s homes legal framework may present a more straightforward route than the 16-19 academies framework for the expansion of local authority involvement in the provision of secure accommodation. However, I reiterate that there is no legal bar here.^[8]

The Minister’s response seeks to keep the vital question of who will be allowed to manage these new custodial institutions within the realms of government policy rather than law. The state has very serious responsibilities when contracting external agencies to run any establishment concerned with the welfare and protection of highly vulnerable children in a closed environment. The history of child protection failures of the outsourced secure training centres demands a different approach whereby only those organisations with a proven track record in looking after children, and keeping them safe, secure government funding. 

From the perspective of children’s welfare, and as a matter of law, these new establishments will be secure children’s homes. They will be required to meet the quality standards set out in children’s homes regulations, and they will – like all other secure children’s homes – be inspected by Ofsted and the Care Quality Commission. 

Without amendment 107, the law will remain ambiguous because local authorities cannot operate Academy trusts. 

Amendment 107 removes the legal ambiguity about local authorities running secure 16 to 19 Academies. It makes children’s welfare and interests paramount rather than financial and administrative arrangements. It is within local authorities that the body of expertise of meeting vulnerable children’s needs in custodial settings and providing services to families within their local communities can be found. Given the very serious harms caused by the most recent failed experiment of secure training centres, which were outsourced from their inception, we urge MPs to support this amendment to avoid another generation of children suffering great harm.

Children in custody

Latest official data shows there were 436 children in custody in December 2021. Eight children were aged between 10 and 14 years; 56 were aged 15; 129 were aged 16; and the majority, 243 (56%), were 17 years old.^[9] 

The prisons inspectorate asks children to complete surveys when it inspects young offender institutions and secure training centres. Its latest annual report on children in custody shows 55% of children were from black, Asian and minority ethnic communities, 52% had been in local authority care, 25% were disabled and 36% had health problems.^[10] Analysis by the Ministry of Justice shows that only around half of children sentenced to custody in 2007/08 had reached the expected level in Maths for a child in the final year of primary school; and only around 6 in 10 had the expected level in reading for a child in their final year of primary school.^[11] 

Only 74 children (17%) were held in a local authority-run secure children’s home in December 2021. These are childcare establishments which are required by law to meet all of children’s needs. The majority (83%) of children were detained in young offender institutions and Oakhill secure training centre. These are institutions which the Youth Justice Board conceded were not fit for purpose several years ago.^[12] It is these institutions which the government has committed to close, albeit without publishing any strategy or timescale for achieving this.

Secure children’s homes

All but one of England’s secure children’s homes are run by local authorities (the other is run by a charity, though it does not look after children who are remanded or sentenced). Children may live in secure children’s homes after a family court has made an order depriving them of their liberty for welfare reasons^[13], or because a criminal court has remanded or sentenced them to youth detention accommodation. Latest inspection judgements for England’s 13 secure children’s homes show that 85% are outstanding (23%) or good (62%) and 15% require improvement to be good.^[14] 

There is considerable expertise within the local authority sector in caring for children with very high levels of need in a locked environment. It does not make sense to exclude this knowledge and learning from secure 16 to 19 Academies. The unremitting failure of the last experiment in child detention – secure training centres – over the past two decades should be the catalyst for ensuring that all future secure establishments are run by those with proven expertise in keeping children safe and looking after them well. 

Demise of secure training centres

In September 2021, a whistleblower contacted Article 39 with very serious child protection allegations concerning the last remaining secure training centre – Oakhill, which is run by G4S. We duly notified the authorities.

A full inspection was carried out and an urgent notification issued by the inspectorates on 14 October 2021. Inspectors found that: children were locked in their rooms for 19 hours a day in July and August 2021 and their “experiences during this period were bleak, and barely met minimum standards of human decency”; safeguarding systems “are in disarray”; child protection concerns have been investigated in-house, rather than by the local authority, “contrary to statutory guidance”; the environment is “dilapidated”; staffing is “fragile”, the support and management staff receive is “poor”; and use of force is “very high”. The inspectorates further noted: “There are incidents where the use of force on children is not justified and contrary to legislation”. Article 39 is aware of further very serious concerns which we have not yet put into the public domain.

With these latest developments at Oakhill secure training centre, we are at the end-stage of the failed experiment of secure training centres. These institutions – like secure 16 to 19 Academies – were intended by the former Conservative government to be centres of excellence in the care and education of children,^[15] and this vision was then adopted by the Labour Party in 1997 when it continued the plans. G4S and Serco were contracted to run the four centres holding children aged 12 to 17 years. Twenty years later, the very strong warnings from the children’s and penal reform sector very regrettably have been proven apposite. In January 2012, the High Court found systemic unlawful restraint from when the centres opened.^[16] Two boys, Gareth Myatt and Adam Rickwood, died following restraint in secure training centres in 2004. 

Children were urgently transferred from Rainsbrook secure training centre last summer,^[17] after the  inspectorates issued an urgent notification. Medway secure training centre was closed in 2019 after a series of investigations followed a damning undercover BBC Panorama exposé of serious child abuse, which was then managed by G4S.^[18]Staff were filmed verbally and physically assaulting children. One manager boasted of stabbing a child’s leg and arm with a fork, another recounted deliberately provoking a child so he could assault him and a third was caught on camera forcing a crying child to repeatedly denounce his favourite football team. A group of staff was filmed discussing fabricating a ‘restraint’ incident. It later transpired that the Youth Justice Board had 35 separate whistle-blowing documents in respect of this institution dating back seven years.^[19] The Independent Inquiry into Child Sexual Abuse reported that there were 44 alleged sexual abuse incidents in Medway secure training centre between October 2012 and February 2017.^[20]

Historical background

As long ago as 1997, the then Chief Inspector of Prisons Lord Ramsbotham urged the removal of children from prison service institutions, explaining “The Prison Service is essentially an organisation for adults, neither structured nor equipped to deal with children. It is the plight of children that alarms us most…”.^[21] In May 2004, the coroner presiding over the inquest into the death of 16 year-old Joseph Scholes in a young offender institution took the highly unusual step of writing to the then Home Secretary asking that a public inquiry be established to consider, among other things, the availability and provision of local authority secure children’s homes.^[22] 

A public inquiry was never established into Joseph’s death – or any of the other 33 children who have died in prisons since 1990 – and it took until December 2016 for the UK Government to admit that prisons cannot be made fit for children: this is when the commitment to phase out young offender institutions and secure training centres was made.^[23] No timetable has followed and there is a distinct lack of urgency in transferring children to community settings or to secure childcare establishments when a period of deprivation of liberty is absolutely necessary. 

Sixteen secure children’s homes have closed in England since 2002. The family courts are increasingly expressing grave concerns about the lack of provision for children with very complex needs. In 2017, the government amended the Children Act 1989 to allow looked after children to be placed in secure units in Scotland – a measure Article 39 strongly opposed as not being in children’s best interests.^[24] The Scottish Government has committed to end this practice by 2024.^[25]

Conclusion

Building back local authority-run secure children’s homes (through secure 16 to 19 Academies) would not only protect those children who would formerly have been sent to a penal institution but also those children in care for whom councils and family courts are desperately seeking secure accommodation in order to prevent significant harm or injury. Ofsted reported last summer:

There is a shortage of secure children’s homes in England. Since 2002, 16 secure children’s homes have closed. At any one time, around 25 children each day are waiting for a secure children’s home place and around 20 are placed by English LAs in Scottish secure units due to the lack of available places. The limited number of secure children’s homes places means that, even when children get a place, they will likely end up living far away from home.^[26][Emphasis added]

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^[1] https://www.gov.uk/government/publications/ofsted-annual-report-202021-education-childrens-services-and-skills/the-annual-report-of-her-majestys-chief-inspector-of-education-childrens-services-and-skills-202021#social-care

^[2] This is run by Nugent Care, latest inspection report (Feb 2022) available here: https://reports.ofsted.gov.uk/provider/2/SC022448

^[3] Section 6(2) Academies Act 2010.

^[4] https://schoolsweek.co.uk/wp-content/uploads/2022/01/SW-274-Digi.pdf

^[5] The Children’s Homes (England) (Amendment) Regulations 2018, laid before Parliament on 30th April 2018 and coming into force on 22nd May 2018, amended the Children’s Homes (England) Regulations 2015 so that secure schools could be a children’s home under the Care Standards Act 2000. This provision is deleted by Clause 139(4)(b)(ii) of this Bill. 

^[6] The announcement in October 2018 that Medway secure training centre would be refashioned as a secure school was made three months before the publication of the serious case review into child abuse there. It is implausible that lessons had been learnt given the scale and level of failure by local and national agencies, as well as G4S.^[6] Article 39 strongly opposed the selection of the site of Medway secure training centre for the first secure school / secure 16 to 19 Academy since it is part of a wider prison complex – Cookham Wood young offender institution and Rochester adult prison are close by – and the building was most recently used to house adult prisoners. We continue to believe that the history of serious child abuse in this institution over many years makes the Medway site wholly unsuitable as a location for a child welfare establishment. 

^[7] The full written evidence (September 2019) can be found here: http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/justice-committee/children-and-young-people-in-custody/written/105901.html

^[8] Column 826: https://hansard.parliament.uk/lords/2022-01-10/debates/DE31B0AB-B2E4-4687-B021-6D127741D254/PoliceCrimeSentencingAndCourtsBill

^[9] https://www.gov.uk/government/statistics/youth-custody-data

^[10] Her Majesty’s Inspectorate of Prisons (February 2021) Children in custody 2019–20: https://www.justiceinspectorates.gov.uk/hmiprisons/inspections/children-in-custody-2019-20/

^[11] Ministry of Justice (2018) Secure schools: youth custody national cohort analysis.

^[12] Youth Custody Improvement Board (February 2017) Findings and recommendations of the Youth Custody Improvement Board.

^[13] Section 25 Children Act 1989.

^[14] https://www.gov.uk/government/publications/ofsted-annual-report-202021-education-childrens-services-and-skills/the-annual-report-of-her-majestys-chief-inspector-of-education-childrens-services-and-skills-202021#social-care

^[15] See this from March 1993: https://publications.parliament.uk/pa/cm199293/cmhansrd/1993-03-02/Debate-1.html

^[16] R (on the application of) The Children’s Rights Alliance for England -v- The Secretary of State for Justice and others.

^[17] The “imminent transfer” of children was announced by the government on 16 June 2021: https://www.gov.uk/government/news/lord-chancellor-takes-immediate-action-to-move-children-from-rainsbrook

^[18] The programme was broadcast on 11 January 2016.

^[19] Medway Improvement Board (March 2016) Final report of the Board’s advice to Secretary of State for Justice.

^[20] IICSA (February 2019) Sexual abuse of children in custodial institutions: 2009-2017 investigation report.

^[21] Her Majesty’s Inspectorate of Prisoners (1997) Young prisoners – a thematic review by HM Chief Inspector of prisons for England and Wales. 

^[22] See [2006] EWCA Civ 1343.

^[23] Ministry of Justice (December 2016) The government response to Charlie Taylor’s Review of the Youth Justice System.

^[24] https://www.communitycare.co.uk/2017/04/28/new-powers-help-councils-shunt-responsibility-secure-placements/

^[25] https://thepromise.scot/plan-21-24-pdf-standard.pdf

^[26] https://www.gov.uk/government/statistics/childrens-social-care-data-in-england-2021/main-findings-childrens-social-care-in-england-2021