Does the Children Act 1989 apply to children in prison?

The Children Act 1989 does apply to people under the age of 18
in prison establishments and the home secretary was wrong to issue
guidance to the contrary. That was the decision of Mr Justice Munby
in the QBD Administrative Court on 29 November 2002 in a case named
R v Secretary of State for the Home Department, ex parte Howard
League for Penal Reform & Department of Health (Interested
Party)

The case concerned a seven-part challenge by the Howard League
for Penal Reform as to the legality of the treatment provided by
the home secretary to juveniles in young offender institutions
(YOIs), and the policy that underlay the provision of that
treatment.

The principal issues for the court to decide upon were:

(i) does the children act apply to YOIs or to the children in
YOIs ?

(ii) was the policy guidance issued by the home secretary
correct when it said that the children act did not apply to those
under 18 years of age in prison establishments?

(iii) was the policy of the prison service in relation to the
treatment of juveniles in YOIs consistent with its domestic and
human rights obligations?

(iv) was that policy being adequately implemented?

(v) should the children act be amended to impose on the prison
service an express statutory duty to promote the welfare of
juveniles in YOIs ?

(vi) whether the standards required to be met in local authority
secure units (LASUs) should also be (required to be) met in YOIs
and

(vii) should child protection work in YOIs be led by local
authorities and/or other childcare agencies ?

The judge held that issues (v) to (vii) could not be dealt with
by this type of court proceedings. On the issues he could deal
with, the judge held that :

(1) The children act did not impose any functions, powers,
duties, responsibilities or obligations on either the home
secretary or the prison service. However, the duties owed by a
local authority to a child did not cease to be owed merely because
the child was in a YOI, but the local authority’s role was subject
to the necessary requirements of imprisonment.

(2) The statement that the children act did not apply to those
under 18 in prison establishments in the policy guidance was
therefore wrong in law

(3) Except for that one error the policy did fully comply with
domestic law and human rights obligations

(4) There was cause for serious concern as to whether that
policy was being satisfactorily implemented throughout the whole of
the prison service juvenile system.

Comment

The Howard League for Penal Reform is a charity that campaigns
for change within the prison system. On this occasion it received
support from The Children’s Society, Barnardo’s, Childline, the
National Children’s Bureau, NCH, Young Minds, NACRO, the NSPCC, and
Save the Children.

This case is very significant, not just because the home
secretary was wrong, but because of the obligations imposed on
local authorities by the children act. It had been thought that
those were effectively suspended whilst a young person was in a YOI
or prison. Now it is very clear that local authorities retain a
statutory duty to safeguard the welfare of children even if they
are in prison.

This case will probably result in more child protection
investigations occurring inside prisons, greater involvement from
social services in assessing the needs of the most vulnerable
children and helping to meet those needs. The figures involved show
that this case will have considerable resource implications for
local authorities because there were 2,633 children being held in
25 jails in England and Wales, as at 30 September 2002. From April
2000 to November 2001, there were 554 reported cases of deliberate
self injury by children, and five children took their own
lives.

Bernadette Livesey

Human Rights Solicitor

Walker Morris