Criminal Justice and Courts Bill House of Lords Report Stage: Secure Colleges and Judicial Review

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1 17 October 2014 Dear Member of the House of Lords Criminal Justice and Courts Bill House of Lords Report Stage: Secure Colleges and Judicial Review In advance of the Report Stage debate on Parts 2 and 4 of the Criminal Justice and Courts Bill in the Lords on Wednesday 22 October, I am writing to outline the concerns of the Office of the Children s Commissioner regarding the Bill s provisions for secure colleges (Part 2 and Schedules 5 and 6) and judicial review (Part 4). The Office of the Children s Commissioner (OCC) is a national public sector organisation led by the Children s Commissioner for England, Dr Maggie Atkinson founded by the Children Act We promote and protect children s rights in accordance with the United Nations Convention on the Rights of the Child and, as appropriate, other human rights legislation and conventions. Judicial review We share the concerns of the Joint Committee for Human Rights regarding the impact of clauses 73 and 74 of the Bill on the ability of charitable and other organisations to bring, support or act as third party interveners in important judicial review proceedings. Our concerns relate particularly to important cases protecting and promoting children s rights. Our own role as a third party intervener or litigator in important children s rights cases would be subject to the chilling effect of clauses 73 and 74 of the Bill and the passing of these clauses would make it less likely that OCC could risk acting as an intervener or party to litigation in future. We therefore believe that clause 73 should not stand part of the Bill and that clause 74 should be amended, as the JCHR recommend, to ensure that protective costs orders are available before permission is granted to apply for judicial review. Secure colleges Under section 2E Children Act 2004, as amended by the Children and Families Act 2014, the Commissioner or a person authorised by her may enter any premises, other than a private dwelling, where a child is cared for or accommodated, in order to interview a child in private, with their consent, and/or to observe the standards of care provided there. In the exercise of these powers the OCC carry out regular visits to the youth justice secure estate (Young

2 Offenders Institutions, Secure Training Centres and Secure Children s Homes) as well as other settings where children are detained. We also use our powers under section 2F Children Act 2004 to request data from visited settings on matters such as restraint, segregation and complaints. Due to our visiting powers we are part of the UK s National Preventive Mechanism (NPM) for the prevention of torture and cruel, inhuman or degrading treatment or punishment, designated by the Government under the Optional Protocol to the UN Convention Against Torture (OPCAT). OCC is also represented on the Ministerial Board on Deaths in Custody. Our concerns about secure colleges centre on four aspects of the proposals: - The size of the institution and likely distance from home - The use of secure colleges for girls and younger boys (aged 12-14) - The Bill s provision for restraint for good order and discipline - The effect of the creation of secure colleges on the secure estate strategy and in particular Secure Children s Homes (SCHs). We believe that while the second and third of these issues could be addressed by amendment of the Bill, the first is fundamental to the Government s plans. We believe that the substantial needs of children in custody require high staff-child ratios and a sufficiently small setting in order for recovery and rehabilitation into the community to be successful. Currently, these conditions are only offered in SCHs. We believe that one consequence of the building of the secure college pathfinder could be the decommissioning of further Youth Justice Board SCH beds, resulting in their closure: this includes SCHs with welfare beds that are an important national resource for vulnerable children requiring secure care at a time of high demand. Size and distance from home The latest youth custody statistics for July 2014 show that the number of under-18s in custody now stands at 1,122 children. As numbers in custody have shrunk, the estate has also been retrenched with, for example, the closure of HMYOI Ashfield and Warren Hill to child prisoners, and the loss of Orchard Lodge, the only SCH near London taking children sentenced to custody. The girls YOI units have also now been closed and girls are only accommodated in SCHs and in three of the four STCs. During our visits to YOIs it has been reported to us that with the decline in numbers in custody, those who remain are in general sentenced for more serious and violent offences, including a substantial number with gang affiliation. Inter-personal violence and bullying of more vulnerable children leads to the use of segregation (including for the child s own protection we have found children segregated for this reason for substantial periods of time) and placement moves

3 in order to keep children apart. As institutions close to children there are, of course, fewer places to move them to. We are therefore concerned that the size of the secure college(s) will exacerbate the risks of inter-personal violence and bullying. We also remain seriously concerned at the potential for large custodial establishments particularly if staffing levels are low to keep costs down - adequately to address the risk of selfharm and suicide presented by the often multiply vulnerable group of children in custody. The proposed 320 bed unit at Glen Parva would accommodate between a third and a quarter of the current child custodial population. We believe that the concentration of the children s prison estate in fewer, larger establishments is likely to compromise both safety and resettlement. We frequently encounter children who receive no family visits due to distance from home and associated transport costs. Accommodation of girls and younger boys (aged 12-14) While girls and younger boys (aged 12-14) are accommodated with older boys in STCs and SCHs, these are much smaller than the planned secure college. The four STCs range from approximately 42 to 81 children accommodated. There are currently only 45 girls and 48 children aged in the whole children s secure estate. We therefore question why it is necessary to include these children in secure colleges, since they are likely to form a tiny minority of those held there (particularly given that some of the already very small numbers will need other placements, for example in SCHs). We further understand that the secure college pathfinder may include a mother and baby unit for young mothers. We have serious safeguarding concerns regarding the placement of year old boys and girls, including pregnant girls and young mothers, and their babies, in an establishment where the vast majority of those accommodated will be older boys, with a high proportion of 17 year olds. It is likely that some of these boys will have been convicted of serious offences of violence including sexual offences. Further, most of the girls in custody will have been previous victims of child sexual abuse (including in some cases child sexual exploitation), meaning that their placement with boys, especially those who have committed sexual offences, is strongly contra-indicated. In our experience, attempts to separate groups within the same institution are unlikely to be entirely fool-proof, resulting in safeguarding risks. In this context lessons should be learned from the recent Ofsted review into inspection of Stanbridge Earls school regarding the risk of bullying, grooming and sexual abuse. Separation of girls and/or younger boys within the larger setting may also result in small, claustrophobic units for the girls and/or younger boys such as featured for girls in adult women s prisons before their closure to girls and limited access to open space, activities and facilities due to the need to keep them separate from the older boys.

4 We therefore believe that girls and younger boys should not be accommodated at the secure college. Restraint for good order and discipline Paragraphs 9 and 10 of Schedule 6 to the Bill permit an officer of a contracted-out secure college to use reasonable force when necessary in the exercise of his or her duty to ensure good order and discipline on the part of children in custody there (and in the exercise of other duties including the duty to attend to the children s well-being), if authorised to do so by secure college rules. Rules making similar provision for the use of force for good order and discipline in secure training centres were found to be unlawful by the Court of Appeal in R (C) v Secretary of State for Justice [2008] EWCA Civ 882 since the use of force for this purpose would constitute inhuman and degrading treatment prohibited by Article 37 UN Convention on the Rights of the Child and Article 3 of the European Convention on Human Rights. We believe that any rules permitting this in secure colleges would be similarly unlawful, and would create a risk that restraint would be used simply to secure compliance with staff instructions. The Joint Committee on Human Rights, in its recent Legislative Scrutiny report on the Bill (October 2014, HL Paper 49), has stated: The law is clear that the use of force on children can only ever be justified in order to protect the child or others from harm, and can never be justified for the purposes of good order and discipline. We recommend that the Bill be amended to make this absolutely clear on the face of the legislation. The Government, in its recently published consultation on Plans for Secure College Rules (Ministry of Justice, October 2014), has failed to assuage these concerns. While they propose additional criteria for the use of force in order to promote good order and discipline, and propose that the use of pain compliance would be forbidden for this purpose, the criteria proposed are very complex and it is likely to be difficult for staff to interpret and comply with them. The resulting lack of clarity risks, in our view, the use of force in circumstances where it is both unnecessary and unlawful as a quick solution to situations that could be dealt with by, for example, engagement and de-escalation. We further note that the method of restraint proposed for the secure college, Minimising and Managing Physical Restraint (MMPR), includes the use of pain compliance techniques, which we believe should not form part of any system of restraint of children. The Committee on the Rights of the Child has emphasised in its General Comment No. 13 on the prohibition of all forms of violence against children that violence as an extrajudicial

5 punishment or to secure compliance with instructions in custody will constitute torture or inhuman and degrading treatment/punishment. We therefore believe that clauses 32 to 34 and Schedules 5 and 6 should not form part of the Bill but if they are enacted, that the Bill should be amended to ensure that girls, and children under 15, cannot be accommodated at secure colleges and to make clear that the use of force for the purposes of securing good order and discipline is not permitted by the Bill. I would be very happy to discuss any of these matters with you further. Yours faithfully, Sally Ireland Principal Policy Adviser (Children s Rights)

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