Children Act ruling on prisons leaves young people in a legal vacuum

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.