Police, Crime, Sentencing and Courts Bill
Clause 139 – secure 16 to 19 Academies
House of Lords, October 2021 onwards
Article 39 is a registered charity which fights for the rights of children living in state and privately-run institutions. Founded in 2015, we take our name from the part of the United Nations Convention on the Rights of the Child which entitles children who have been abused or neglected to recover in environments where their health, self-respect and dignity are nurtured.
The National Association for Youth Justice (NAYJ) is the only individual membership organisation which exclusively campaigns for the rights of and justice for children in trouble with the law.
NAYJ was formed in 1995 following the amalgamation of two existing organisations, the Association for Youth Justice and the National Intermediate Treatment Federation, and in 2010 became a registered charity. NAYJ seeks to promote the welfare of children in the youth justice system in England by campaigning, lobbying, publishing practice and policy papers and providing training events and conferences.
Our two organisations are founder members of the End Child Imprisonment campaign, whose latest publication – The case for ending child imprisonment (December 2020) – can be found here.
We are seeking amendments to the Police, Crime, Sentencing and Courts Bill, to enable local authorities to run secure 16 to 19 Academies, either alone or in consortia, and to prevent these establishments being run for profit.
Clause 139, page 128, line 22, at end insert—
“(8) A local authority may establish and maintain a secure 16 to 19 Academy.
(9) A body corporate (including any of its subsidiaries) that is carried on for profit may not be a party to an arrangement to establish and maintain a secure 16 to 19 Academy.”
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 Police, Crime, Sentencing and Courts 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). This is due to open in late 2022. Local authorities were not permitted to tender for this contract. In its submission to the Justice Committee’s inquiry on children and young people in custody, the Local Government Association said:
We welcome the Government’s commitment to take forward the recommendations from Charlie Taylor’s review of the youth justice system for secure schools to support improved outcomes for children in custody. We are, however, disappointed that councils were excluded from the opportunity to run these despite their significant expertise in youth justice and success in running SCHs.
After the Clause 139 amendment above was proposed in the House of Commons, the then Minister for Courts and Sentencing wrote to the Co-Chairs of the Public Bill Committee:
The Ministry of Justice is not aware of any specific legislative barrier to the provision of secure 16 to 19 academies by local authorities. It should be noted that there would be administrative burdens for a local authority in doing so, due to the provisions of the Local Government and Housing Act 1989. It is the policy of the government that academy trusts not be local-authority influenced companies, and as a result, no academy in England is operated by a local authority. The Ministry of Justice is committed to mirroring academies policy and procedures in secure schools to the greatest extent possible and our policy on this issue will be consistent. We will though want to keep this issue under review.
Local authorities have a long-established and important role in children’s social care and youth justice provision, including running secure children’s homes (SCHs). My department recognises the vital work of local authorities in the SCH sector and will continue to place children in SCHs even as we plan to replace young offender institutions and secure training centres with secure schools and similar smaller units. The department also has the capability to expand local authority involvement in youth justice provision by commissioning additional beds in secure children’s homes for children sentenced or remanded to custody.
The Minister’s response underlines the ambiguity of what secure 16 to 19 Academies are intended to be. 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. However, from a financial and administrative perspective, it appears they will operate as academy trusts.
There is the further anomaly that the 16 to 19 Academy aspect of this new type of establishment relates to educational institutions which are “principally concerned with providing full-time or part-time education suitable to the requirements of persons over compulsory school age but under 19”. Yet a government policy paper from July 2021 maintains that: “Secure schools will accept placements of young people between the ages of 12 and 18”.
Our amendment 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 Peers to support this amendment to avoid another generation of children suffering great harm.
On the matter of profit, we understand the government’s position that academies cannot be run for profit. However, this is a new type of children’s establishment which legally merges secure children’s homes and academies. The primary legislation bringing this about ought to be absolutely clear that profit-making from children’s deprivation of liberty is prohibited.
Children in custody
Latest official data shows there were 472 children in custody in August 2021. Seventeen children were aged between 10 and 14 years; 56 were aged 15; 127 were aged 16; and the majority, 272 (58%), were 17 years old.
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. 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.
Only 77 children (16%) were held in a local authority-run secure children’s home in August 2021. These are childcare establishments which are required by law to meet all of children’s needs. The majority (84%) 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. It is these institutions which the government has committed to close, albeit without offering 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, 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 69% are outstanding (15%) or good (54%) and 31% require improvement to be good.
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
Peers will be aware of the urgent notification issued in respect of Oakhill secure training centre on 14 October 2021 by Ofsted, the Care Quality Commission and Her Majesty’s Inspectorate of Prisons. Undertaking a full inspection of this last remaining secure training centre earlier that month, 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 found: “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, 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. 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 this summer, 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.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. 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.
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…”. 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.
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. 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. The Scottish Government has committed to end this practice by 2024.
The amendments we propose will not affect the first secure 16 to 19 Academy, though they will stop this and future establishments being run for profit.
Critically, local authorities will be able to apply to run future establishments. 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 this 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.[Emphasis added]
 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 omitted by Clause 139(4)(b)(ii) of this Bill.
 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. 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.
 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
 The amendments were tabled by Sarah Champion MP, and debated in the House of Commons on 15 June 2021, Column 567 onwards.
 The full letter can be found here: http://data.parliament.uk/DepositedPapers/Files/DEP2021-0585/Chris_Philp_MP_to_the_PCSC_Bill_Committee_Members.pdf
 Section 1B Academies Act 2010.
 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/
 Ministry of Justice (2018) Secure schools: youth custody national cohort analysis.
 Youth Custody Improvement Board (February 2017) Findings and recommendations of the Youth Custody Improvement Board.
 Section 25 Children Act 1989.
 See this from March 1993: https://publications.parliament.uk/pa/cm199293/cmhansrd/1993-03-02/Debate-1.html
 R (on the application of) The Children’s Rights Alliance for England -v- The Secretary of State for Justice and others.
 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
 The programme was broadcast on 11 January 2016.
 Medway Improvement Board (March 2016) Final report of the Board’s advice to Secretary of State for Justice.
 IICSA (February 2019) Sexual abuse of children in custodial institutions: 2009-2017 investigation report.
 Her Majesty’s Inspectorate of Prisoners (1997) Young prisoners – a thematic review by HM Chief Inspector of prisons for England and Wales.
 See  EWCA Civ 1343.
 Ministry of Justice (December 2016) The government response to Charlie Taylor’s review of the youth justice system.