By Carolyne Willow, director of children’s rights charity Article 39
Only one aspect of the Children and Social Work Act 2017 comes into force immediately. This is a new power for local authorities in England and Wales to send children to be locked up in secure accommodation in Scotland under the Children Act 1989.
Lack of specialist provision has precipitated this change: there has been a 21% reduction in places in England over the past six years. That’s a loss of 61 places. The Scottish Government has welcomed the changes, stating one or more secure units north of the border could be forced to close without them.
Children in care are the only children who can be locked up because they might run away and suffer significant harm, or be at risk of injuring themselves or others. The courts have long held Children Act 1989 secure accommodation orders to be draconian and a last resort measure. The ethical and legal issues become even more contentious the older the young person. As a lawyer argued in the Court of Appeal last year, it would not be legitimate for parents of 16 and 17-year-olds to lock their children in their bedrooms as a protective measure.
‘Impact on child welfare’
Research for the Department for Education, published last December, reports varied views among local authorities of the quality and culture of secure accommodation in England. Some “have the skill-set and multi-disciplinary team required to provide high quality assessments and a therapeutic environment to start the healing process, while stabilising children and keeping them safe”, while others are “run more ‘like prisons’”.
The same research referred to the children being placed in “faraway secure settings” and summed up the likely impact of this on a child’s welfare:
“Sending children [long distances] away meant disrupting their (often fragile) connections with family and other support networks, and with local services. This could add to the stress of what was already an extremely stressful experience for a child, and could make transition back into the community more difficult.”
‘Right to consent removed’
Previously, local authorities in England and Wales have had to seek legal authority from the High Court and the Scottish Court of Session in order to lawfully detain children in Scottish secure accommodation. There are around 20 children currently placed under such orders.
Now the Children and Social Work Act allows local authorities to use the Children Act 1989 instead. The longstanding right of children to consent to placements ‘abroad’ – that is, outside of England and Wales – has been removed.
The duty to obtain the child’s consent prior to ‘emigration’ was present in the Child Care Act 1980, which preceded the 1989 Act, and can be traced all the way back to 19th Century poor law legislation. Although the language of emigration had been dropped by 1989, the importance of respecting the child’s views stayed. The duty to seek consent remains intact for other placements outside England and Wales.
The legal requirement to appoint three people, one of whom must be independent of the local authority, to review the child’s detention in secure accommodation has also been dis-applied to those sent to Scotland.
‘No consultation with children’
Ministers sought to present these legislative changes as minor and technical. They are neither. Besides the removal of the duty to obtain consent and to arrange independent reviews, there are obvious implications for family contact and children maintaining meaningful relationships with their social workers, independent reviewing officers, independent visitors, advocates and lawyers. The education system is different in Scotland.
I am not suggesting that placements in secure accommodation in Scotland could never conceivably be in children’s best interests. But they ought to be rare. The amendments make it easier (and cheaper) for local authorities to obtain legal authority for detention in Scotland, with the risk is that such placements will become more commonplace.
There was no consultation with children, young people and families or the professionals working with them. Children’s Commissioners for England, Wales and Scotland were similarly not asked their views, despite their statutory duty to promote and protect the rights of children.
‘Anger and sadness’
Minister for Vulnerable Children and Families, Edward Timpson MP, tabled the secure accommodation amendments after the Bill had passed through the House of Lords. In response, Shadow Children’s Minister Emma Lewell-Buck MP proposed a ‘sunset clause’ which would have expired the changes after two years. Article 39 lobbied MPs to back this clause but there wasn’t sufficient time for effective scrutiny. That said, Lewell-Buck did not mince her words in challenging the government:
“It was with a mix of anger and sadness that I tabled the new clause, which would give ministers two years to sort out a situation that has arisen on their watch: the intolerable lack of secure places for our country’s most vulnerable children. Those are children who are looked after by the state and who the courts have found to be at risk of significant harm and injury or a risk to others by their being looked after by local authorities. They are our responsibility.”
On Wednesday, an inquest concluded that a child with epilepsy died of natural causes in Cookham Wood prison two years ago. The inquest heard that an officer had looked through the boy’s cell peep-hole during the early morning roll-call, and discovered bedding on the floor. He and a colleague kicked the boy’s door to awaken him. They then went for a cigarette. After 38 minutes, 16 year-old Daniel Adewole’s cell door was opened. He was found dead on the floor. He was serving a six-month sentence for assault.
There is growing consensus among professionals and organisations working with children that prison is never a suitable environment. When children genuinely cannot be supported safely in the community, they should be detained in child-centred secure children’s homes. But this requires a national strategy for children’s specialist social care provision and concomitant resources. Allowing policy-makers and local authorities in England and Wales to shunt responsibility to Scotland risks further reductions in secure accommodation here. These are not changes to celebrate.