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The Court of Appeal has today upheld the human rights of children in secure training centres (STCs) by quashing restraint rules introduced by Ministers last summer. The rules were brought in following the damning inquest into the death of a child caused by restraint. Instead of increasing child protection in secure training centres, Ministers gave staff extra restraint powers.
Lawyers acting for a child (“AC”) at risk of entering a secure training centre successfully argued that the new rules are unlawful. The rules allowed staff to restrain children for “good order and discipline”. Restraint methods authorised by Ministers for use on children as young as 12 include the very painful rib and thumb “distractions”.
Carolyne Willow, CRAE's national co-ordinator, said:
‘We are thrilled with the judgment. These unlawful rules were pushed through last summer, despite strong opposition from Parliamentarians, child protection experts and human rights groups. The court of appeal has quite rightly put children's rights ahead of the interests of the private companies running these centres. There should be compensation for children who have been unlawfully restrained. Information must now be sent to every child held in a secure training centre telling them about the judgment and who they can contact if they feel frightened or have been hurt.’
Diana Sutton, head of policy and public affairs at the NSPCC said:
“This crucial judgment is a huge step forward and supports our view that restraint should only be used as a last resort and not as a routine disciplinary measure.
“Evidence we recently received from children held in detention showed that restraint sometimes resulted in them suffering injuries and often left them feeling angry and depressed.
“Many of these children will have suffered abuse or been caught-up in domestic violence before going into custody. They need care not harsh treatment and hopefully this ruling will go some way towards achieving that.”
The Court of Appeal has quashed the rules because they breach the European Convention on Human Rights. They violate children's right to protection from inhuman and degrading treatment, as well as their right to a private life. The Court observed, ‘There has been a history of non-observance of the [Youth Justice Board's] Code of Practice. To extend the purposes for [restraint] … would be to aggravate the existing problem, because it would add an inherently vague, ill-defined justification for the use of force.’
The rules were in operation from 6 July 2007 until today. This judgment means that potentially hundreds of children have been treated unlawfully and will be eligible for compensation. CRAE has previously tried to get human rights information directly to children in secure training centres. The centre directors, in discussion with the Youth Justice Board, refused to pass on our letters to children. We challenged this refusal and are awaiting a response from Ministers.
Carolyne Willow adds:
‘Today's judgment shows we were right to want to alert children to the probability that centre staff were acting unlawfully. In refusing our request, the centre directors and YJB withheld basic human rights information from children and their families. We hope Ministers will stand up to the centre directors and allow us access.’
The Court criticised the lack of consultation. LJ Buxton explained: ‘despite the absence of a formal consultation process a significant range of persons expressed concern at the proposed introduction of the Amendment Rules. These included persons with experience of running penal institutions, as well as bodies such as the Children’s Commissioner and the NSPCC with concerns for the welfare of children.’
The Court of Appeal has refused Ministers the right of appeal.
The Children's Rights Alliance for England has supported the case throughout, working closely with the NSPCC, INQUEST, the Howard League for Penal Reform and Liberty.
Earlier this year, the joint select committee on human rights condemned the restraint rules. David Hanson, the Prisons Minister, responded to the Committee’s report this month. The select committee, chaired by Andrew Dismore MP, reacted strongly to the Minister's dismissive approach.
On David Hanson's attempt to separate the use of force from discussions about violence against children, the Committee said:
‘… such a distinction does not feature in human rights law. The key question is whether the use of restraint can be justified in the circumstances. Whilst the Minister robustly states that the Government does not sanction violence against children, this is exactly what current legislation permits, albeit using the terminology of "force" rather than violence.’
The Committee summed up the vulnerability of children in custody:
‘Children and young people in detention are in a uniquely vulnerable position. Whilst everyone in detention must be treated with dignity and respect, children in detention have particular needs, distinct from the adult prison population, given their age and stage of development. The use of violence on vulnerable children and young people in detention can rarely be acceptable and risks breaching international human rights standards.’
The new rules were in place from 6 July 2007 until today. They permitted staff in secure training centres (STCs) to physically restrain children in order to ensure “good order and discipline” (in addition to their existing powers to use restraint to prevent injury, escape or property damage). Methods of restraint include the painful rib and thumb “distraction”, and the nose “distraction” (until December 2007, when it was suspended by Ministers; the Government has recently confirmed that it has been permanently withdrawn).
The case was heard in the High Court in December 2007. The Ministry of Justice and the Youth Justice Board claimed the rule change was simply a “tidying up” exercise and did not amount to any significant change in policy on restraint. The High Court disagreed. It said the change was “significant” and that the Secretary of State, if she “had applied her mind to it, could [not] reasonably have seen it in a different way”.
The High Court concluded that Ministers had acted unlawfully in deciding not to consult the Children’s Commissioner and in their failure to carry out a race impact assessment, prior to the Rules being introduced. However, the High Court found there was no human rights breach and it did not quash the rules.
Lawyers acting for the child appealed and the matter was heard in the Court of Appeal on 16 and 17 July 2008. The Children’s Commissioner for England and the Equality and Human Rights Commission, which has statutory responsibility for the monitoring and enforcement of equality law compliance in the UK, intervened in the case.
1. The Children's Rights Alliance for England is a coalition of over 380 organisations that seek the full implementation of the Convention on the Rights of the Child in England.
2. The Convention on the Rights of the Child gives children full protection from all forms of violence in all settings.
3. The UK has one of the lowest ages of criminal responsibility in Europe: eight in Scotland and 10 in the rest of the UK. In 2005, the European Social Rights Committee declared the UK to be in breach of article 17 of the European Social Charter because our age of criminal responsibility is ‘manifestly too low’.
4. The UK locks up more children than most industrialised countries. At any one time there are at least 200 children held in secure training centres.
5. Since 1990, 30 children have died in custody. Of these deaths, one was a homicide, one died as a result of restraint in a STC, the other 28 were self-inflicted, including the suicide of 14 year-old Adam Rickwood in a STC in 2004 hours after being restrained. There has never been a public inquiry into any of these deaths.
6. Between 1 January and 31 March 2008, restraint was used 503 times on children in STCs. Of those incidents, six involved the use of a painful “distraction”.
7. Between 1 April 2007 and 29 February 2008, there were 18 injuries resulting in hospitalisation as a result of assault, restraint or self-harm in STCs. Of 52 child injuries requiring treatment following restraint in secure training centres (30 in one centre alone) between April and October 2007, not one child was taken to hospital.
8. Strong opposition to the Amendment Rules led the Ministry of Justice and Department for Children, Schools and Families to establish a joint independent review of restraint of children in custody, which was launched in October 2007 and was originally due to report to Ministers in April 2008. The review period was extended until June 2008 to allow consideration of restraint practices in local authority secure children’s homes.
9.On 24 June 2008, the Government announced that it had received the report from the co-chairs of the independent joint review. Contrary to calls from the joint select committee on human rights, NGOs (including CRAE, INQUEST and the NSPCC) and others, the Government refused to publish the report upon receipt, indicating that it intended to do so by the end of October 2008, together with its response to the report.
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