20 Nov 2019
Children’s rights in prison routinely overlooked and ignored
The rights of children in trouble with the law are routinely overlooked and ignored in the criminal justice system, the Howard League for Penal Reform warns today (Wednesday 20 November) in a new briefing to mark the 30th anniversary of the United Nations Convention on the Rights of the Child.
The Convention is the most widely-ratified human rights treaty in history, with the US being the only UN member state that has abstained, but it is also the most violated – and particularly so for children in custody.
In England and Wales, breaches of the Convention affecting children in trouble with the law have been pointed out repeatedly in a series of damning reports by the United Nations Committee on the Rights of the Child.
The committee has criticised the low age of criminal responsibility, the high number of children deprived of their liberty, and the treatment and conditions of children in custody.
Frances Crook, Chief Executive of the Howard League for Penal Reform, said: “Through a combination of legal work and campaigning, the Howard League has battled to make the rights set out in the United Nations Convention on the Rights of the Child a reality for children.
“But it should not require the intervention of lawyers and campaigners to ensure that the rights of children in conflict with the law are upheld.
“Whatever the outcome of the forthcoming general election, the next government must end the abuse and neglect of children in custody.”
Since 2002 the Howard League has used its legal and campaign work to fight for the rights of children in conflict with the law and to improve their situation in line with the aspirations of the Convention.
Some of the charity’s achievements are explained in detail in the briefing, called All our children: The work of the Howard League to make the rights of children in trouble a reality in England and Wales.
R (Howard League) v Secretary of State for the Home Department
In 2002 the Howard League brought a case that forced the prison service to accept that the welfare duties owed to children in the community also applied in prison. Previously, it had been widely thought that children’s rights stopped at the prison gates.
As a result of the case, a raft of policies and procedures was introduced to protect the welfare of children in prison in line with the Children Act 1989. This was a huge step forward but not enough to protect children in prison from abuse and neglect, as demonstrated by a number of reports from independent bodies such as Her Majesty’s Inspectorate of Prisons, the Joint Committee on Human Rights and the Independent Inquiry on Child Sexual Abuse.
There is much to be done to bring the treatment of children in prison in line with Article 3 of the Convention, which requires all actions and decisions affecting children to be in their best interests.
R (K) v Parole Board
Article 12 of the Convention says that all children have a right to express their views in matters affecting them and that they should be given opportunities to do so.
In 2006 the Howard League successfully argued in a judicial review that the right for children to be heard when being considered for release by the Parole Board required the provision of appropriate support.
Following the case, the charity produced a publication outlining the special requirements that apply to children being reviewed by the Parole Board.
The Howard League lobbied the Parole Board and secured an automatic right for children to have oral hearings if not released following a paper review.
R (DT) v Secretary of State for the Home Department
Article 37 of the Convention requires that children should not be placed in adult prisons. In 2004 the Howard League relied on this provision to argue that a 17-year-old girl had been placed in an adult prison unlawfully.
The case failed on the basis that, at the time, the government had issued a reservation in respect of this requirement. But the court observed its hope that the reservation would be withdrawn, and ultimately the judgment was influential in leading to the end of placing girls in adult women’s prisons in England and Wales.
R (M) v Hammersmith and Fulham London Borough Council
Article 40 of the Convention says that children in custody should be supported to reintegrate into the community. In 2008 the Howard League brought a legal case that has helped hundreds of children to get better support on leaving custody.
M, a child in prison, challenged the failure of her local authority to provide her with support from social services. The judgment established that, where a child appears to need accommodation, that child must be referred to children’s services for an assessment of their needs, even if they initially present to the council’s housing department.
Following the case, the Department for Communities and Local Government and the Department for Children, Schools and Families issued joint guidance aimed at ensuring that there were “no gaps” between housing services and children’s services. This is crucial because it helps to ensure that children get the support they require and helps to prevent them ending up without a home.
R (AB) v Secretary of State for Justice
The Howard League issued a judicial review on behalf of a child, AB, who was kept in solitary confinement at Feltham prison when he was 15.
The widely accepted international definition of solitary confinement is being kept for 22 or more hours a day alone without meaningful contact and with available stimuli reduced to a minimum. AB was held in these conditions for at least 55 days. He was locked alone in his cell for more than 23 hours a day. He received no education and had no access to gym, psychological interventions or purposeful activity. He was permitted no contact with other children and had limited contact with adults.
AB was one of many children who told the Howard League that they had been isolated in this way without any proper safeguards in place, resulting in no clear plan as to how or when the isolation might come to an end.
The High Court found that AB’s treatment was not in accordance with the law and in breach of his human rights. However, the High Court and Court of Appeal did not accept that this treatment was inhuman and degrading. The courts found that it did not amount to a breach of his right to personal and psychological development.
The Court of Appeal also examined the relevance of the Convention and the interpretation of the United Nations Committee on the Rights of the Child and found these provisions only prohibited the use of solitary confinement to punish a child as part of a disciplinary process.
AB has petitioned the Supreme Court to be allowed to appeal the decision.
Publicity about the case has led to a number of reports in the national media, raising the profile of the issue. It also prompted a statement from the British Medical Association, the Royal College of Psychiatrists and the Royal College of Paediatrics and Child Health condemning the use of solitary confinement on children and raising ethical concerns about medics being involved in the process.
Earlier this year, a parliamentary inquiry concluded that the use of solitary confinement was widespread and a breach of human rights.
Notes to editors
- The Howard League for Penal Reform is the oldest penal reform charity in the world. It is a national charity working for less crime, safer communities and fewer people in prison.
- All our children: The work of the Howard League to make the rights of children in trouble a reality in England and Wales can be read on the Howard League website.
- Although the Convention was ratified by the UK government in 1991, it has not been incorporated into English law. It was incorporated into Welsh law through the Rights of Children and Young Persons (Wales) Measure 2011. In 2019 the Scottish government issued a public consultation on incorporating the Convention into Scottish law.
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