News

On the face of it, the High Court decision last month that the Children Act 1989 does apply to children held in young offenders institutions should be considered good news for anyone under 18 currently held in the prison system.

After all, the ruling enshrines in law the principle that children within the prison system have the same rights to welfare protection as children elsewhere (news, page 6, 5 December).

But when it comes to putting the new rights into practice, there is a danger that these young offenders may have escaped one "legal limbo" only to fall into another.


For although the ruling overturns the Home Office policy that the Children Act does not apply to under-18s in prison establishments, it does not impose any "functions, powers, duties, responsibilities or obligations" on the Prison Service to ensure the act's protection is put in place.

This duty, according to Mr Justice Munby, remains with local authorities and, by implication, their social services departments. Hence the alarm bells that have been ringing in social services departments throughout the country over the past fortnight.

"For a start, which social services department do they mean?" asks Robert Lake who, as director of social services in Staffordshire, has good reason to be concerned: Staffordshire receives about 25 per cent of placements to YOIs.

"Do they mean the young person's home authority, or the geographical one in which the YOI is located? Does this mean that my department suddenly becomes responsible for hundreds of young people in YOIs? That just would not be realistic.

"We need the Department of Health to consider the ruling and issue guidance," he says.

Lake also takes issue with the assumption that all children in YOIs will already be known to their local authority, which must therefore "retain" responsibility.

"Many of these young people have never been the responsibility of the social services department," he says. "It is wrong to assume that all of these young people are already known to social services."

These grey areas of responsibility may have significant legal implications. Children who feel their rights under the Children Act have been infringed while in a YOI might now be able to take legal action, not against the Prison Service, but against the local authority.

The consequences for local authority budgets could also be catastrophic. The ruling is likely to result in more child protection investigations occurring inside prison and a high proportion of the 2,600-plus children currently held in the prison system in England and Wales being considered to be children in need. There were 554 cases of deliberate self-harm between April 2000 and November 2001. Five children took their own lives.

According to the Howard League for Penal Reform, whose legal challenge to the Home Office policy prompted Mr Justice Munby's ruling, the only way to resolve the confusion over responsibility is to update the Children Act itself.

"We have a nonsensical situation whereby social services have a statutory duty to safeguard the welfare of children in prison but the Prison Service does not," says the head of the Howard League's youth justice law department, Fran Russell.

"The Children Act needs urgent amendment and we hope to work constructively with the government to achieve this."

Former chief inspector of prisons, Sir David Ramsbotham, has also called for legal changes. Writing in The Observer earlier this month he outlined a system of joint working between the prison service, youth justice board and social services. Ultimate responsibility for the child's welfare, however, should rest with the YOI, he said.

"Individual governors of YOIs should be put in loco parentis of all children in their care. They should be made responsible for the application of the Children Act, including child protection procedures," he said.

Ramsbotham also believes that every YOI should have a resident social services manager, responsible for liaising with social workers anywhere in the UK, and that a manager should be appointed to represent the prison service on the Youth Justice Board.

But in the absence of any immediate changes to the Children Act there is an obvious need for the various agencies to draw up a joint working agreement.


Experience in Staffordshire has shown that joint protocols can be highly successful. Over the past two years, staff from its social services department have been working jointly with local prisons and YOIs to develop child protection procedures that can be implemented within the secure environment.

"We have been doing a lot of work and training with prison staff with, it has to be said, a lot of success," Lake says. "We have developed a formal system for section 47 inquiries using the same policies that we would use within the community."

This system includes investigating all disclosures of abuse that the child may have suffered in the past, all allegations of sexual abuse, all serious allegations in any other category of harm and significant allegations against staff.

Nevertheless, such protocols are not foolproof and place a high degree of responsibility on prison staff.

"Of course, it all depends on the prison staff recognising that something is a child protection issue," Lake acknowledges.

And while joint protocols for child protection issues may be possible, Lake has doubts as to whether the same can be said for the Children Act's provision for children in need.

"The big issue after this ruling is how we're going to deal with section 17 [children in need] inquiries," he says. "Many of the children in YOIs are, by definition, children in need so this is where it's going to be difficult.

"For instance, many of the young people in prison will have mental health needs, but we know there's a national shortage of mental health facilities for young people."

Di Hart, principal officer of the National Children's Bureau's residential care unit, also has concerns about how social services departments can be expected to safeguard the welfare of children who are not under their immediate care.

"Because the present rules still apply, it's difficult to see exactly what a local authority could do," she says.

"There are protocols in place to deal with concerns about child protection issues and the police and social services have a duty to investigate.

"But what would happen if it was the prison environment itself that was putting the child's welfare at risk? It has been suggested that emergency protection orders could be issued. But would social services be able to remove the child from that environment?"

Hart welcomes the "symbolic significance" of the ruling but stresses that it is now up to the statutory authorities to embrace it in a positive way "so that the spirit is implemented".

"Obviously we are very pleased about the result as it has highlighted a whole group of children who have been in legal limbo. It shows that these children still have rights even though they are in prison.

"However, the ruling seems to be mainly about the responsibilities of local authorities rather than saying that young offenders institutions should change their practices.

"So it remains to be seen just how the statutory authorities put it into practice. At the moment it seems that everybody is sitting back waiting to see what happens. You get the feeling they're all waiting for one of the other agencies to come up with a plan."

Like Lake, Hart believes there is an urgent need for government guidance on how the ruling should be interpreted.

According to a spokesperson at the DoH last week, no guidance is currently planned "because the ruling doesn't change the Children Act in any way".

But the confusion still remains. And for social services departments, the prison service and, of course, the children themselves, it must be hoped it will be cleared up sooner rather than later.