Professor Kathryn Hollingsworth
The Ministry of Justice has recently published its proposals to reform the system of youth custody in England and Wales through the introduction of secure colleges. In this blog Professor Kathryn Hollingsworth sets out what we know about children currently detained in the juvenile secure estate and considers whether the secure colleges will help to achieve a more rights-consistent and socially-just system of child imprisonment. The blog is based on a Current Legal Problems lecture delivered at UCL on 23rd January 2014 entitled ‘Assuming Responsibility for Incarcerated Children’.
A key issue in relation to social justice for children is how we respond when they break the law. We know that children who offend are likely to have experienced multiple prior disadvantages and those who end up in custody are an especially vulnerable group. Research by Jacobsen et al in 2010, for example, found that 78% of imprisoned children had absent fathers and 33% an absent mother; 51% had lived in a deprived household/unsuitable accommodation; 48% had been excluded from school; 39% were on the child protection register and/or experienced abuse or neglect; 28% had witnessed domestic violence; 27% had experienced local authority care; 20% self-harmed; 11% had attempted suicide; 17% had a diagnosed mental disorder and 13% had experienced the bereavement of their father, mother or sibling.
It is thus cause for celebration that the rate of child custody has declined so significantly in England and Wales over the past five years. In November 2013, 1229 under 18 year olds were in detention compared to more than 3000 in 2009, and thus far fewer vulnerable children are now held in custodial institutions. However, these figures must be seen in context: England and Wales still has one of the highest rates of child imprisonment in western Europe; children continue to be incarcerated for quite minor offences; over 60% of children remanded to custody do not go on to receive a custodial sentence; and black boys have not benefitted from the decline and remain significantly over-represented in the custody population.
Moreover, the declining rate of child imprisonment tells us nothing about how children are treated when they are detained. Report after report – from NGOs, from the Children’s Commissioner, from the Prisons Inspectorate, and from the Probation and Prisons Ombudsman – provide evidence of the shocking treatment that children experience in the so-called juvenile secure estate. Here is a snap-shot of what we know (with quotes from some reports in italics):
- First, children die in prison: 33 children died in the secure estate between 1990 and 2012, which includes three deaths in 2011-12.
- Second, children are restrained, sometimes using pain-infliction techniques, sometimes using handcuffs, and sometimes resulting in injury. In 2011/12, there were 8419 incidents of restraint involving children in prison, an average of 702 incidents involving 474 children per month. This is greater than in 2008-09 when the custody rate was more than twice as high. Proportionately children from black and minority ethnic groups are more likely to be restrained, as are young children and girls. [“I had bruising on my back from where I was slammed into the wall in my cell”; “Loads of them come on you in full riot gear and beat the sh*t out of you” UR Boss, Life Inside]
- Third, self harm is prevalent: there were 1791 incidents of self harm in 2011-12, down 35% from 2008 but up 21% from the year before and the rate for girls is especially high (at 26%).
- Fourth, children were subject to 43,960 incidents of strip-searching in the 21 months up to December 2012, and although the Youth Justice Board previously announced that only risk-based strip searching is now to be used, prison inspections show that it continued to be routinely used [“Until now, the first experience of every single child entering a young offender institution has been of removing their clothes whilst two strangers stare at their bodies” Andrew Neilson, Howard League]
- Fifth, children are placed in segregation units, sometimes without education or purposeful activity, and sometimes with little time outside of their cell. [“On the block you just have a mattress on a concrete slab”; “It’s mentally draining. It does more harm than good . . . Young people come out more violent, you can tell what it’s done to them”.]
- Sixth, children are assaulted by other children and in some institutions experience a great deal of bullying. This is one of the key concerns expressed in the Howard League’s UR Boss campaign and the prisons and probation ombudsman has noted that bullying had been present in the lives of children who died in the secure estate. [The environment in prisons doesn’t make you want to achieve anything. Call it gang culture if you want. Everything is about violence. Prisons only deter you by scaring you. The violence is unbelievable” Howard League Life Inside 2010]
- Seventh, on occasion, and in breach of the UN Convention on the Rights of the Child, a child may be placed in an adult prison.
- Finally, children are placed a long way from home – the Youth Justice Board has dropped its target of placing children within 50 miles of their home, making visits and the continued relationship with families increasingly difficult.[“I’m entitled to five visits a month but I only get two because my mum lives so far away” Howard League, Life Inside 2010].
However, the experiences of children in the secure estate vary depending upon what type of institution they are placed in. Currently, children sentenced to custody in England and Wales are held in one of three types of accommodation. The first is secure children’s homes. These are run by local authorities and are small units with a high staff-child ratio that house the youngest (12-14 year olds) and most vulnerable children. The second type of accommodation currently available is the secure training centre. There are four privately run STCS, each of which accommodate between 50-80 children and, though they are penal (rather than care-based) institutions they also accommodate younger and vulnerable children (and girls). Finally, young offender institutions (YOIs) are used to accommodate the majority of children sentenced to custody (about 77%). These are, in effect, prisons for children; accommodation is in cells, staff are prison officers not care workers, and there is a low staff- child ratio (1:15). Unsurprisingly, it is YOIs – and to a lesser extent STCs – where children receive the worst treatment and in relation to which most of the data presented above relates.
Given the current experiences of detained children, the publication in January 2014 of the Ministry of Justice plans to ‘transform youth custody’ in England and Wales (and see the original green paper from February 2013 here) is, at first glance, to be welcomed. The Government plans to create a network of secure colleges – the first of which is to open in Leicestershire in 2017 – which together will be used to accommodate almost all children detained in the juvenile secure estate. The colleges are intended to provide better educational provision for detained children (currently some children receive only 11 hours of education per week), to improve resettlement support, and thus to decrease recidivism (70% of children leaving custody re-offend). However, although an attempt to reform youth custody is to be welcomed, these proposals are unlikely to come anywhere close to being ‘transformative’. Instead, there is a clear risk that the proposed secure colleges will perpetuate – or indeed worsen – many of the shortcomings of the current system. Very young and very vulnerable children will be placed together with older children in large institutions that will contain up to 300 children. And, because the colleges are so big, there will be only a handful of them and thus many children will continue to be placed a long way from home. There are concerns too about the use of ‘reasonable force’ that the current proposals will allow to be used for the purpose of ‘good order and behaviour’ (GOAD), rather than its use being confined to situations where the child is posing a danger to him/herself or others (see the provisions in the Criminal Justice and Courts Bill). The use of restraint for GOAD in secure training centres has previously been held to be unlawful by the Court of Appeal and a breach of children’s Article 3 ECHR rights (which prohibits degrading and inhuman treatment). Depending on what ‘reasonable force’ entails there is a very real risk that children’s rights will again be at risk.
The Government’s published proposals for secure colleges made no mention at all of children’s rights. Furthermore, there was no reference to the need to care for children who are deprived of their liberty and removed from their families and carers. I have argued elsewhere (in the public lecture delivered at UCL referred to above) that when under 18s are incarcerated – and thus when parents and carers are prevented from meeting their parental duties to their children – then the state can be seen as assuming a responsibility to parent those children; a duty that should include providing the child with care and with a home. Although the exact structure and nature of the secure colleges is not yet clear, the information available so far suggests that this type of duty cannot be fulfilled in these new institutions. They have been designed with two aims in mind: to reduce cost and to reduce re-offending, not to improve the experiences and care that children receive. To truly transform youth custody, secure children’s homes not colleges must be used throughout the secure estate with a focus on care, on children’s rights, and on reintegrating children back into the family and community that is otherwise responsible for them.