Child Protection and the ‘Juvenile Secure Estate’ in England and Wales: Controversies, Complexities and Concerns
Child Protection and the ‘Juvenile Secure Estate’ in England and Wales: Controversies, Complexities and Concerns
This chapter engages with the difficult and contested question of child protection within locked institutions. The primary objective is to illuminate some of the key intersecting controversies, complexities and concerns that relate to the practices of locking up children and protecting them once their liberty has been withdrawn. For present purposes, ‘child protection’ is taken to have three core dimensions: the protection of children’s human rights as provided by domestic statute and international standards, treaties, rules and conventions; the protection of their emotional, developmental and psychological well-being; and the protection of their physical (including sexual) integrity. In England and Wales, the ‘juvenile secure estate’ comprises three different types of institution:
1.local authority secure children’s homes
2.secure training centres
3.young offender institutions.
Secure children’s homes contain children whose liberty is restricted by either the civil courts (Family Proceedings Courts and County Courts) or the criminal courts (Youth Courts and Crown Courts), whereas secure training centres and young offender institutions are exclusively reserved for children whose liberty is restricted in criminal proceedings.
Locking up children is, and should be, a controversial practice per se. This is compounded by the paradoxical fact that the law provides for the institutional restriction of children’s liberty in both civil and criminal proceedings, on both welfare and offending grounds. In child care proceedings, children are detained in secure children’s homes under the provisions of civil law because their vulnerabilities in the community are considered so great that institutional confinement is sanctioned by the courts in order to keep them safe. In this context the restriction of the child’s liberty is conceived as a protective measure, a benign intervention in order to safeguard and promote their welfare. On the other hand, the rationale for detaining children in secure children’s homes, secure training centres and young offender institutions under criminal law (in youth justice proceedings) is quite different. Here, it is the risk that children are thought to pose to the community, rather than the vulnerabilities that they might experience within it, that is imperative. The restriction of liberty is legitimised by reference to control, correction and even punishment. For the former group of children, child safety and child protection is the stated priority; the locked institution is seen as a place of safety. For the latter, community safety and public protection takes precedence; the locked institution is seen as a site of control, correction and, ultimately, punishment.
The means by which children are ‘socially constructed’ (James and Prout 1997) and formally conceptualised, lies at the root of such a paradox. A victim–threat dualism operates, whereby children can be perceived either as troubled and in need of protection (the child as victim), or as troublesome and in need of control, correction and punishment (the child as threat) (Goldson 2004). Despite such tidy conceptual differentiation, however, in practice children can rarely, if ever, be crudely dichotomised in this way. There is significant overlap between such categories, and the backgrounds, social circumstances, welfare needs and child protection requirements of such children are often very similar (Goldson 2002). The initial source of controversy, therefore, is that the restriction of liberty is incongruously legitimised by its appeal to care and welfare on the one hand, and with reference to control and punishment on the other. This is not only theoretically problematic but it also provides the potential for the inconsistent and excessive application of institutionally imposed restrictions of children’s liberty. This, in turn, gives rise to further controversy.
The United Nations Convention on the Rights of the Child provides that:
No child shall be deprived of his or her liberty unlawfully or arbitrarily. The [restriction of liberty]…shall be used only as a measure of last resort and for the shortest appropriate period of time (United Nations General Assembly 1989, Article 37b, emphases added)
It follows that closely and consistently observed legal safeguards are necessary in order to protect children’s human rights. Yet the evidence outlined below suggests that in England and Wales children’s liberty in institutions is restricted inconsistently and excessively, contrary to the principles of ‘last resort’ and ‘shortest appropriate period of time’. This implies insufficient protection of children’s human rights.
Restriction of liberty as ‘care’
Placing children in secure children’s homes in civil proceedings raises many controversial issues with regard to ethics, human rights and professional licence. Hodgkin, for example, has questioned:
…why exactly is it necessary to lock up young people who are only a risk to themselves? What if their behaviour is untreatable within the locked placement? …How can one determine which to lock up of the many thousands of young people whose behaviours make them eligible for security… ? What filters, judicial or otherwise, ensure that only the necessary minimum are locked up? (Hodgkin 1995, p.7, original emphasis)
Indeed, research that has focused upon the characteristics, behaviours, vulnerabilities and protection needs of children placed in secure children’s homes within the child care context adds weight to Hodgkin’s queries. Thus, O’Neill (1999, p.290) observed that: ‘it seems that many young people in secure accommodation are not significantly different from those accommodated in non-secure provision’, and Aymer and her colleagues noted that:
…it is not necessarily the hard core of dangerous and self-damaging children and young people, those for whom secure accommodation was designed, who go into security… This was our finding and it…begs questions about who is being locked up and why? (Aymer et al. 1991, p.93)
Similar findings are echoed by O’Neill (2001a) and Vernon (1995). Although the legal criteria that must be satisfied before a child’s liberty can be restricted in child care proceedings are ostensibly strict, in practice the processes that determine the ‘placement’ of children in secure children’s homes comprise something of a lottery. Furthermore, the inconsistencies and excesses of such a ‘lottery’ have both gendered and geographically centred dimensions. In other words, girls are more likely than boys to be detained in secure children’s homes for reasons of ‘care’ and ‘protection’, and some local authorities are significantly more likely than others to resort to institutional restrictions of children’s liberty (for a fuller discussion see Goldson 2002).
Restriction of liberty as ‘control’ and ‘correction’
Rates of detention in locked institutions (of young people who offend) have increased rapidly in recent years in England and Wales. The total number of custodial sentences imposed upon children rose from approximately 4000 per annum in 1992 to 7600 in 2001, a 90 per cent increase (Nacro 2003, 2005). During the same period the child remand population grew by 142 per cent (Goldson 2002). In March 2004, there were 3251 children (aged 10–17 inclusive) in penal custody in England and Wales, 80 per cent of whom were held in prison service young offender institutions (Youth Justice Board 2005, p.78).
Such patterns of child imprisonment in England and Wales are excessive when compared to most other industrialised democratic countries in the world (Youth Justice Board 2004, para. 9; for a fuller discussion see Muncie and Goldson 2006). They also bear no direct relation to the general incidence or severity of youth crime itself. Although it is always necessary to exercise care and caution in reading, analysing and interpreting ‘official’ youth crime data (Muncie 2004, pp.15–19), incidence of youth crime in England and Wales has been stable, if not diminishing, in striking contrast to the law and policy allowing for substantial penal expansion. More specifically, the number of child prisoners aged 12–14 increased by 800 per cent in the ten-year period 1992–2001 (Home Office 2002), the use of penal custody for girls increased by 400 per cent over a similar period (Nacro 2003), and black children are consistently over-represented within the population of child prisoners (Feilzer and Hood 2004). None of this bears any direct relation to the age, gender or ethnic distribution of crime, rather it represents a crude politics of toughness with child-focused, gendered and racialised inflections.
In sum, the protection of children’s human rights in accordance with the ‘measure of last resort’ principle is fundamentally compromised. While controversy surrounds the excessive number of cases in which decisions are made to restrict children’s liberty in locked institutions, complexity characterises the context, policies, procedures and practices relating to child protection once children are detained.
Applying child protection principles to the practice of locking up children is, in many respects, intrinsically paradoxical. It follows that child protection policies, procedures and practices within the ‘juvenile secure estate’ are pitted with myriad complexities. There is not space for a comprehensive analysis of such complexities here. Instead two illustrations, the first relating to secure children’s homes and the second to young offender institutions, are considered.
Protecting the mix? Children’s differences and similarities
As noted, secure children’s homes draw their statutory authority from both civil and criminal statute and, as such, they fulfil specific but different functions within both child welfare and youth justice systems. Consequently, children are ‘placed’ in secure children’s homes under highly varied circumstances, and for very different purposes:
•sanctuary because they are thought to be especially vulnerable and in need of concentrated forms of care and protection (‘looked after’ children)
•containment in order to protect others, to deter them from offending and/or to guarantee that they attend court for trial or sentence (remanded children)
•correction and punishment because they have been convicted of offences (sentenced children).
The diverse and potentially conflicting purposes, associated with widely differing needs of the children concerned, pose major challenges for the operational rationale of secure children’s homes; and their routines, regimes and practices:
the considerable differences in terms of the age, gender, ethnic origin…anticipated length of stay and distance from home area typify the profiles of children in secure facilities nationally. The implications that such differences raise in terms of managing and meeting the respective needs of such a ‘mix’ of children in closed facilities are profound…an intricate matrix of needs, rights and responsibilities calls for quite staggering versatility. (Goldson 1995, p.5)
Some commentators have problematised such a diverse mix by emphasising issues of incompatibility particularly along the axis (frequently gendered) of ‘non-offender’ (child welfare)–‘offender’ (youth justice). Thus research by O’Neill (2001b, p.6) revealed that ‘non-offenders’ were concerned about living alongside those convicted of violent and sexual offences. This applied particularly to those who were known to have been sexually abused and/or to have been engaged in child prostitution prior to admission. Similarly, Hodgkin (1995, p.42), referring to girls with long histories of appalling sexual abuse and violation, questioned how they ‘could benefit from being locked up with convicted rapists and violent offenders’.
Indeed, children detained in secure children’s homes on the basis of their ‘welfare’ and ‘protection’ needs, and the staff who work with them, typically illuminate such tensions and complexities (Goldson 2002, pp.119–21):
Not all of us are in here for our own safety. It’s not right that we are mixed – we should be kept separate. Sentenced and welfare are here for very different reasons and yet we are just all put together. We should not be in mixed units. (Girl aged 16 yrs)
All Secure Units should be closed down. It is not going to help anybody. They are like prisons. Prisons are for bad people. I am not a bad person. There are more criminals in here than welfare people. I am here for welfare, I have not done anything to anyone to get myself in here. (Girl aged 15 yrs) 90% of them don’t think they should be here because they can’t see what they are doing wrong… There are welfare kids who could spend a year in here and who have they mixed with? They’ve mixed with muggers, rapists, robbers and car thieves. They are here because they are at risk. It makes no sense. (Secure Unit Residential Social Worker)
Generally they think that they are here to be punished. How can you explain to a girl who has been abused for years and comes in here for self-harming and overdosing that she is not being punished when the abuser is walking about freely on the outside… More to the point how do you explain to her that it is not punishment when she comes in here and is mixing with children serving sentences? (Secure Unit Team Leader)
The mix of children within secure children’s homes raises some extraordinarily complex issues, therefore. On the one hand, the practice is tantamount to the criminalisation of children with compelling welfare needs. Moreover, locking up such children alongside convicted ‘offenders’ might expose them to heightened risks of emotional, developmental, psychological, physical and/or sexual abuse. On the other hand, as noted, the victim–threat dichotomy is oversimplified, which means that many of those admitted for offences are very vulnerable too. Although the ‘welfare’ and ‘justice’ constituencies of children enter secure children’s homes along quite different legal pathways, their background circumstances and consequent needs are often very similar (Goldson 2002, p.122):
The other way of looking at this is that the justice kids have welfare needs, and we have to be careful not to lose welfare issues for justice kids. (Secure Unit Shift Manager)
When you read the files there is not as much difference in their backgrounds at all. (Secure Unit Team Leader)
Indeed, while children’s differences within secure children’s homes are sources of tension, similarities in their collective circumstances and needs are also evident. Most of the children in secure children’s homes, irrespective of their legal status at the point of admission, have experienced unsettling and unstable family and domestic circumstances; chequered education; emotional, psychological, physical and/or sexual abuse; and invariably have poor self-images that are the net result of multiple disappointments and histories of failed and neglectful relationships (Boswell 1996; Goldson 1995, 2002). Such differences and similarities give rise to particular complexities, and impose formidable demands on staff with child care and child protection responsibilities in secure children’s homes.
‘Safer custody’? Punishment and protection
Young offender institutions are prisons to which children in England and Wales are sent as punishment. It is increasingly recognised, however, that child prisoners typically endure serious welfare neglect and ‘import’ multiple vulnerabilities into prisons. Moreover, penal regimes tend to accentuate such vulnerabilities and in so doing they expose children to significant risks and harms. The requirements of child protection, within a conceptual and institutional context of punishment, raise a range of theoretical and practical complexities, therefore. With regard to the latter, the Youth Justice Board for England and Wales (YJB) advised the Home Secretary in 1998 that: ‘there is clear evidence that the current arrangements for juvenile secure facilities are highly unsatisfactory’ (Youth Justice Board 1998, p.12). This echoed serious concerns about the conditions and treatment of child prisoners expressed in previously published reports (Her Majesty’s Chief Inspector of Prisons 1997; Utting 1997). As a result, the YJB has since endeavoured to apply a ‘safer custody’ agenda to the ‘juvenile secure estate’. The processes of ‘placement’ and ‘assessment’ have been substantially reformed, with a focus on developing child protection policies, practices and procedures (Goldson 2002; Goldson and Coles 2005).
This effort was galvanised following an action for judicial review brought by the Howard League for Penal Reform in November 2002. Prior to the Howard League’s action, the statutory protections provided in England and Wales, by the Children Act 1989, had been interpreted as not applying to children in penal custody. As Valier (2004, p.15) has observed, however: ‘the League successfully challenged the legality of the Home Secretary’s policy on statutory child protection duties towards children held in young offender institutions’. Since the judgment (Munby 2002), a range of child protection initiatives have been implemented.
The Association of Directors of Social Services, the Local Government Association and the Youth Justice Board (2003) have made a series of recommendations in respect of the applicability of the Children Act 1989 to child prisoners, and the associated duties of statutory agencies to ensure that robust child protection processes are in place. Prison Service Order 4950, ‘Regimes for Under 18 Year Olds’, has been revised to include a detailed sequence of ‘annexes’ and ‘appendices’ setting out child protection law, guidance, policy, procedure, process and practice, together with a range of pro-forma documents for the purposes of executing and recording child protection interventions in young offender institutions (Her Majesty’s Prison Service 2003). Her Majesty’s Prison Service ‘Juvenile Group’ and the Youth Justice Board (2003) have undertaken a ‘Child Protection and Safeguards Review’. The Department for Education and Skills (2004) has issued a Local Authority Circular entitled ‘Safeguarding and promoting the welfare of children and young people in custody’. The Circular advises Local Authorities in areas where there is a young offender institution or a secure training centre to: ‘ensure that they have agreed local protocols with custodial establishments…in line with legislation, guidance and local procedures, including the local Area Child Protection Committee (ACPC) child protection procedures’ (Department for Education and Skills 2004, p.2). Finally, the YJB has published a three-year ‘Strategy for the Secure Estate for Juveniles’ in which it states its determination to ‘ensure that young offenders are cared for in custodial establishments where they are kept safe and healthy in decent conditions’ (Youth Justice Board 2004, p.14).
Despite the various policy and procedural reforms that have been, and continue to be, implemented, and the determined practical efforts of (some) operational staff to take account of the specific needs of child prisoners, ‘caring’ for children in young offender institutions and sustaining effective child protection systems is an exceptionally complex, if not impossible, task. The very concept of ‘safer custody’ or the ‘caring prison’ (Prisons and Probation Ombudsman 2004, Ev. 68) is, in essence, an oxymoron; there is little or no evidence to suggest that the child protection reforms have succeeded in making prison custody any safer. Three factors are particularly significant in explaining why this might be so.
First, there are inherent tensions in values, roles and responsibilities. In the final analysis, the priority role of young offender institutions staff is to maintain discipline, order and institutional security. Set against this is the duty of care, which has a secondary status. This incongruous duality of controlling and caring functions is the source of conceptual ambiguity and operational difficulty. Second, limited resources and relatively low staffing levels tend to prohibit any meaningful engagement between staff and child prisoners beyond the basic routines of day-to-day operations. Third, staff training is generally inadequate. Expertly developed knowledge and skills, together with ongoing professional training, are required to meet the complex needs of child prisoners and to sustain an ethos of child protection. Although ‘training’ consistently features prominently within official discourse, policy statements and institutional ‘mission statements’, in reality its delivery is inconsistent and superficial. Her Majesty’s Chief Inspector of Prisons (2005, p.59) has referred to ‘concerns’ with regard to ‘the absence of sufficient training for staff’ working with child prisoners and has observed that, although ‘the Prison Service has now developed a training package…it lasts for only seven days and, even then, establishments are expressing concern about how they will facilitate this’. Furthermore, while ‘some prisons keep up to date with training…others had done none in the previous year or failed to meet targets’ (Her Majesty’s Chief Inspector of Prisons 2005, p.18). In essence, staff in young offender institutions are required to fulfil a function for which they are neither professionally trained nor adequately equipped.
The complexities of providing protection within a context of punishment are compounded by prison overcrowding, a direct consequence of the excessive use of child imprisonment in England and Wales referred to earlier. When young offender institutions are pressured by overcrowding:
services which have been put in place to support vulnerable [children] become overwhelmed with the result that some [children] cannot access support when they need it. Staff who are overstretched can fail to notice when [a child] is experiencing distress. (Mind 2004, Ev. 108).
It is inevitable, therefore, that many child prisoners continue to feel ‘unsafe’ (Challen and Walton 2004; Her Majesty’s Chief Inspector of Prisons 2005), and progress in terms of advancing the child protection agenda remains ‘patchy’ (Her Majesty’s Chief Inspector of Prisons 2005, p.56).
The controversies and complexities that have been considered inevitably also raise concerns. In many respects locking up children is a sign of failure in earlier interventions, which is itself a source of concern. Furthermore, restricting children’s liberty, within both child care and youth justice contexts, initiates a range of additional theoretical, conceptual and practical concerns. Here it is not possible to address such concerns in their entirety, but two examples are offered by way of illustration. The first relates to the protection of children’s emotional, developmental and psychological well-being, together with safeguarding their physical integrity and safety, in secure children’s homes. The second applies to the same priorities within young offender institutions.
Secure children’s homes: providing relief, precipitating danger?
Official representation, government guidance and professional discourse present secure children’s homes as providing far more than a means of restricting liberty within the child care system. Indeed, they are conceived in terms of the ‘added value’ that they are thought to confer in respect of their civil application. They are presented as providing a specialist service that is not available elsewhere, for a constituency of particularly damaged, vulnerable and/or abused children. There can be little doubt that the adverse social circumstances of some children, and the perilous lives that they lead, place them at serious risk of significant harm. Despite the controversies raised with regard to the inconsistent and excessive application of locked institutional interventions, it is difficult to quarrel with the restriction of liberty per se as a ‘last resort’ and ‘for the shortest appropriate period’. In cases where such interventions can relieve children from the most appalling maltreatment and, at the extremes, literally save lives, secure children’s homes appear to fulfil an essential function (Goldson 2002).
The emphasis here is placed primarily upon the immediate benefits of secure children’s homes. In this sense the secure children’s home provides a sojourn facilitating temporary relief from the dangers of the street, a safe enclosure, an opportunity to attend to primary health needs, a ‘pit-stop’ for restoring a sense of ‘childhood’, a chance to rebuild emotional well-being and self-worth. The value of such tangible benefits should not be understated. However, in terms of the medium- to longer-term ‘benefits’ of secure children’s homes far less is known.
In posing the question ‘What is the effect of security on young people?’, for example, Vernon (1995, p.2) could only conclude that, ‘despite the importance of this question, the relative absence of long-term studies means that there is a dearth of conclusive research evidence in this respect’. This remains the case to this day. Furthermore, the evidence that is available raises a very important concern. Bullock and Little (1991, p.2), two of the most respected researchers in the field, have noted that, ‘there is little doubt that secure accommodation is an effective damper on the immediate threat posed’ and that, ‘some observed improvements do seem to transfer to the outside world’. The same researchers, however, also point out that ‘there are dangers of serious psychological and social damage being inflicted on children if placements are not managed well’ (Bullock and Little 1991, p.2). In other words, secure children’s homes may provide immediate benefits in certain circumstances, but they might equally make bad problems worse in others. It is of concern that the medium- to longer-term consequences of locked institutional interventions within the context of child care and child protection have been, and continue to be, neglected.
Young offender institutions: the pain of confinement
As noted earlier, there is little or no evidence to suggest that the various child protection initiatives that have been introduced within young offender institutions in England and Wales, have succeeded in making the ‘jailhouse’, however it is configured, a safer place for children (Goldson and Coles 2005). In fact, concerns relating to the damaging and corrosive nature of penal custody for children have been consistently expressed over time from some of the most authoritative sources.
A decade or more has passed, for example, since the United Nations Committee on the Rights of the Child (1995) first formally reported that the human rights of child prisoners in England and Wales were being routinely violated. Despite the serious concerns raised, little or no remedial action was taken. Indeed, in October 2002, the Committee again formally reported its ‘deep concern’ at ‘the high increasing numbers of children in custody…in violation of article 37(b) of the convention’, and its ‘extreme concern’ regarding ‘the conditions that children experience in detention’, including the ‘high levels of violence, bullying, self harm and suicide’ amongst child prisoners (United Nations Committee on the Rights of the Child 2002, para. 57). Similar concerns have also been expressed by a wide range of penal reform organisations and children’s human rights agencies within England and Wales, together with the most senior personnel from eight major statutory inspectorates, who concluded that child prisoners ‘face the gravest risks to their welfare’ (Social Services Inspectorate et al. 2002, p.72). More recently, the Council of Europe’s Commissioner for Human Rights noted that, ‘one can only conclude that the prison service is failing in its duty of care towards juvenile inmates’ (Office for the Commissioner for Human Rights 2005, para. 93).
In protecting the emotional, developmental and psychological well-being of locked-up children, together with safeguarding their physical integrity and safety, the size of the institution in which they are detained is particularly important. In comparing young offender institutions with secure children’s homes and secure training centres, Her Majesty’s Chief Inspector of Prisons (2002, pp.36–37) has explained:
One of the most important factors in creating a safe environment is size. The other places where children are held – Secure Units and Secure Training Centres – are small, with a high staff–child ratio. The Prison Service, however, may hold children in what we regard as unacceptably high numbers and units. Units of 60 disturbed and damaged adolescents are unlikely to be safe… There are therefore already significant barriers to the Prison Service being able to provide a safe and positive environment for children; and the question whether it should continue to do so is a live one. Yet during the year the number of children has risen, to close to 3,000, and looks set to rise further. Promises to reduce unit size…are further than ever from being delivered.
The treatment and conditions experienced by many child prisoners in England and Wales is tantamount to institutional abuse. By way of illustration, the Children’s Rights Alliance for England (2002) undertook a detailed analysis of the conditions and treatment experienced by children in penal custody, drawing on reports prepared by Her Majesty’s Inspectorate of Prisons. The results showed widespread neglect in relation to physical and mental health; endemic bullying, humiliation and ill-treatment (staff-on-child and child-on-child); racism and other forms of discrimination; systemic invasion of privacy; long and uninterrupted periods of cell-based confinement; deprivation of fresh air and exercise; inadequate educational and rehabilitative provision; insufficient opportunities to maintain contact with family; poor diet; ill-fitting clothing in poor state of repair; a shabby physical environment; and, in reality, virtually no opportunity to complain and/or make representations.
Young offender institutions are corrosive places, therefore, in which children routinely suffer emotionally, developmentally, psychologically and physically (Goldson 2002). Most child prisoners suffer in silence. Some express their suffering by harming themselves. Between 1998 and 2002, for example, there were 1659 reported incidents of self-injury or attempted suicide by child prisoners in England and Wales (Howard League for Penal Reform 2005). Of greatest concern of all, are the children for whom the pain of confinement is literally too great to bear. Such is the depth of their suffering that death becomes preferable to life. Between July 1990 and January 2005, 28 child prisoners died in England and Wales, all but two of the deaths seemingly self-inflicted (Goldson and Coles 2005).
This chapter has engaged with a broad-based definition of child protection which has been taken to mean the protection of children’s human rights, the protection of their emotional, developmental and psychological well-being, and the protection of their physical (including sexual) integrity. In many important respects the three dimensions overlap and intersect. Two discrete legal constituencies of children in England and Wales have been profiled: those who enter secure children’s homes via the civil proceedings/child care route, and those who are detained within secure children’s homes, secure training centres and young offender institutions under criminal proceedings/youth justice statute. Despite the legal differentiation, however, it has been argued that the circumstances, welfare needs and protection requirements of both constituencies are similar. By critically analysing the practices of restricting children’s liberty through a child protection lens, a range of controversies, complexities and concerns has been raised and, here too, overlap and intersection is evident. The chapter illuminates some ways in which children’s individual vulnerabilities, welfare needs and protection requirements can be exacerbated by the processes of institutional intervention. Closer critical exploration and more detailed research along similar lines is certainly required. In the meantime, perhaps sufficient ground has been covered to conclude that placing children in locked institutions can seriously compromise the spirit and practical imperatives of child protection.
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