Abstract
Interim Review of the Youth Justice System in England and Wales Proposes ‘Fundamental Change’ of Children’s Custodial Estate
In September 2015, Michael Gove, Secretary of State for Justice, commissioned a departmental review of the youth justice system in England and Wales to be led by Charlie Taylor, an educational expert whose previous experience includes being Chief Executive of the National College for Teaching and Learning. The review is due to complete its deliberations in the summer of 2016, but an interim report was published in February.
The terms of reference for the review are wide ranging, involving an exploration of The nature and characteristics of offending by young people aged 10-17 and the arrangements in place to prevent it; How effectively the youth justice system and its partners operate in responding to offending by children and young people, preventing further offending, protecting the public and repairing harm to victims and communities, and rehabilitating young offenders; and Whether the leadership, governance, delivery structures and performance management of the youth justice system is effective in preventing offending and reoffending, and in achieving value for money.
Consideration of the minimum age of criminal responsibility is, however, explicitly excluded despite the fact that, at 10 years, the age of criminal liability in England and Wales is the lowest in Europe outside of other UK jurisdictions. Courts and sentencing were also originally outside the terms of reference but following publication of the interim report, the Secretary of State extended the remit to include the arrangements for children subject to criminal prosecution.
Despite being relatively short – at just 10 pages excluding the front sheet and a forward by the Secretary of State – the interim report covers a lot of ground. It provides a helpful context for understanding the review’s deliberations by making explicit two ‘key principles’ that have informed the approach taken. The first is that ‘children who break the law [should be] treated differently to adults’; the second principle, in keeping with the report author’s background, is that ‘education must be central to an effective youth justice system’. While containing few direct recommendations, the ensuing discussion contains a number of intimations as to the nature of recommendations that might be anticipated in the final report.
Currently, community-based youth justice provision is delivered by youth offending teams, local statutory multi-agency partnerships prescribed by the Crime and Disorder Act 1998. The Taylor review acknowledges the strengths of partnership work but also reports concerns in some quarters that the rigidity of the organisational arrangements required by the legislation are no longer appropriate given that statutory caseloads have fallen by 74 per cent since 2006/2007. The report questions whether, in this new context, the youth offending team structure has restricted the extent to which local authorities have been able to reconfigure provision to better align youth justice with other mainstream services for children, given the well documented overlap between children in conflict with the law and the wider population of children in need.
The report confirms that contact with the criminal justice system can have a ‘tainting effect’ for children and that prevention and diversion should accordingly be maximised. The longer term impact of criminalisation is also recognised, and the report suggests that it may be necessary to review current arrangements for retaining and disclosing records of children’s criminal activity to ensure the ‘right balance right balance between protecting the public and employers from risk and promoting the reintegration and rehabilitation’ of children who break the law. The treatment of children in police detention also comes under scrutiny and the report notes that the review team is working with the Home Office to consider how the provision of appropriate adults might be improved.
If these comments are indicative of potential future thinking around the issues, there are more definite proposals in relation to the use of custody for children and these constitute the main focus of the report. The current secure estate is described as being in need of ‘fundamental change’, and the review notes increasing levels of violence within custodial institutions and acknowledges that many staff in young offender institutions (YOIs) and secure training centres (STCs), which in combination accommodate almost 90 per cent of children deprived of their liberty through the criminal justice system, do not have the skills or experience to manage the vulnerable and challenging children in their charge. As shown in Table 1, just 10 per cent of children in custody are accommodated in secure children’s homes (SCHs), which have significantly higher staff to child ratios and employ a workforce that is predominantly social work trained.
Proportion of children in custody detained in each type of custodial provision: February 2016.
The report contends that education should be placed ‘at the heart of youth custody’ and proposes the replacement of most existing custodial institutions by a network of smaller establishments that should be conceived of as secure schools. These would be ‘set up in a similar way to alternative provision free schools in England, and located in the regions that they serve’ and would be inspected as educational institutions. In the short term, it is likely that government commissioning would be required to establish the new institutions, but the longer term vision is that responsibility for managing them – as well as community youth justice provision – would be devolved to local areas.
While further work is clearly required to flesh out details of what ‘secure schools’ would look like, the proposals have received a broad welcome. The National Association for Youth Justice, for instance, in its response to the initial report, applauds ‘the ambition’ of the reform programme, albeit that the organisation would ‘prefer a model based on the premise of placement in secure child care establishment with high quality education provided on the premises, rather than a school that provides secure accommodation’.
Irrespective of the details of the proposed replacement, however, there is good evidence to support the review’s contention that existing custodial provision is inadequate. In particular, YOIs which are by some margin the largest of existing facilities appear to perform significantly worse on a range of indicators than smaller establishments. A recent annual survey of children in YOIs and STCs demonstrates that the experience of those in the former is significantly worse on a number of comparable dimensions. For instance, while fewer than a quarter of children in STCs report having ever felt unsafe while in the establishment, the equivalent proportion for YOIs is one in three. Other aspects of children’s experiences are shown in Table 2.
Self-reported experiences of children in young offender institutions (YOIs) and secure training centres (STCs) 2014–2015: selected indicators.
No equivalent data are currently available for the experiences of children in SCHs, but other evidence suggests that these establishments also generate better outcomes for children than YOIs.
Research undertaken for the Children’s Commissioner for England on the use of isolation across the secure estate in England found that the practice was common with more than one in three children experiencing isolation while in custody. However, there were significant differences between types of establishments: as a consequence of episodes of isolation being of shorter duration in SCHs than in YOIs, children detained in the latter spent, on average, eight times as long as those in the former. Moreover, this was likely to be an under-estimate since many episodes of cellular confinement within YOIs were not recorded as instances of isolation. These differences between establishments could be explained by a number of factors:
Lower staff-to-child ratios were predictive of a higher use of isolation;
Larger units with a higher density population were more likely to generate forms of conflict between young people that were typically managed through an increased use of isolation;
YOIs demonstrated a more rigid institutional culture that was more likely to result in default responses to manage challenging behaviour;
The geography of smaller units allowed the separation of children who needed to be kept apart for their own safety without either being removed from the standard regime.
These factors not only tended towards differential use of isolation but generated significant variation in children’s experiences of isolation when it was used. Within smaller establishments, isolation was frequently deployed for short periods as a form of ‘time out’ to allow children to cool off. As a consequence, such episodes often took place in corridors or class rooms without the need for returning children to their bedrooms or transferring them to a formally designated care and separation unit. Moreover, children isolated in SCHs had much greater access to education and other elements of the standard regime than their equivalents in YOIs.
Recent developments have also confirmed that the experience of children in STCs also leaves much to be desired. Following an expose by the BBC’s Panorama programme, broadcast in January 2016, that showed significant maltreatment of children by staff at Medway STC, Nick Hardwick, then Her Majesty’s Chief Inspector of Prisons, published an advice note to the Secretary of State for Justice that recorded ongoing ‘significant concerns’ and argued that risks to children were increased by very high rates of staff turnover. In response, the Minister announced the establishment of an Independent Improvement Board to investigate safeguarding procedures at Medway and to make recommendations on improving the safety of children in custody across the broader estate to inform the deliberations of the youth justice review. The Board’s report, published in May 2016, found that the culture in STCs focused on control and contract compliance: ‘at the expense of safeguarding and nurturing’ and points to the necessity of developing a new vision … for STCs or any arrangement that replaces STCs, that clearly articulates the purposes of these establishments, their focus on education and rehabilitation, and cultural values that promote a nurturing and safe environment The Minister of Justice’s announcement of a review of youth justice is contained in a written statement to Parliament 11 September 2015, available at: www.gov.uk/government/speeches/youth-justice The review’s original terms of reference, published by the Ministry of Justice, are available at: www.gov.uk/government/uploads/system/uploads/attachment_data/file/461529/youth-justice-review-terms-of-reference.pdf Review of the youth justice system: an interim report of emerging findings, is published by the Ministry of Justice and is available at: www.gov.uk/government/uploads/system/uploads/attachment_data/file/498736/youth-justice-review.pdf The proportion of children detained in each type of custodial establishment is given in Monthly youth custody report: February 2016, published by the Youth Justice Board and available at: www.gov.uk/government/statistics/youth-custody-data The National Association for Youth Justice’s Response to review of the youth justice system: an interim report of emerging findings is available at: http://thenayj.org.uk/wp-content/uploads/2016/04/2016-Response-to-the-interim-report-of-the-Taylor-Review-of-youth-justice-.pdf Children in Custody 2014–15: an analysis of 12–18-year-olds’ perceptions of their experience in secure training centres and young offender institutions, by Alissa Redmond, is published by HM Inspectorate of Prisons and is available at: www.justiceinspectorates.gov.uk/hmiprisons/wp-content/uploads/sites/4/2015/12/HMIP_CP_-Children-in-custody-2014-15-FINAL-web-AW.pdf Unlocking potential: a study of the isolation of children in custody in England is published by the Children’s Commissioner for England and is available at: www.childrenscommissioner.gov.uk/sites/default/files/publications/Unlocking%20Potential_0.pdf Her Majesty’s Inspector of Prison’s Advice note to the Secretary of State for Justice on Medway secure training centre is available at: www.justiceinspectorates.gov.uk/hmiprisons/inspections/medway-secure-training-centre-4/ The announcement of the establishment of the Independent Improvement Board for Medway Secure Training Centre is contained in a written statement to Parliament by Michael Gove on 26 January 2016, available at: www.gov.uk/government/speeches/youth-announcement The Medway Improvement Board’s Final report of the Board’s advice to the Secretary of State for Justice is available at: www.gov.uk/government/uploads/system/uploads/attachment_data/file/523140/medway-report.pdf
Children Placed in Children’s Homes in England and Wales Have Higher Rates of Contact with the Youth Justice System than Other Children in Care
It is well established that children in public care in England and Wales are over-represented among those who come to the attention of the youth justice system. According to information released by the Department for Education, while just 1 per cent of the general population of children aged 10–17 years were subject to a conviction or formal pre-court sanction during 2014, the equivalent figure for children in care was 6 per cent. Moreover, it is likely that these data understate the true extent of over-representation since they are restricted to children who had been looked after by the local authority continuously for at least 12 months prior to 31 March 2014, thereby excluding children subject to shorter care episodes.
The figures in isolation do little to illuminate the processes which might explain the correlation between care and offending. For instance, more than 60 per cent of looked after children come into care as a consequence of abuse or neglect. Since previous adverse experiences are also considered to be ‘risk factors for offending’, shared histories rather than care experience might help to account for the overlap in outcomes. However, research published by the Howard League for Penal Reform in March 2016 suggests that the experience of care itself may also contribute to the over-representation of looked after children in the justice system and, in particular, that the nature of placement might be one of the relevant variables.
Three-quarters of children in care are placed with foster carers with the remainder accommodated in a variety of settings that include children’s homes. Children placed in the latter form of accommodation are more likely to be subject of a formal criminal justice sanction than those in other forms of care provision, but the differential is particularly pronounced for those aged 13–15 years who were almost 6 times as likely as their peers in other placement types, and nearly 20 times as likely as children in the general population, to be criminalised.
The Howard League suggests that a number of considerations might account for such stark differences. First, children’s residential establishments are more likely to involve the police for behaviour – such as minor criminal damage – that would be resolved informally in other settings. In such circumstances, the police are used by residential providers as a mechanism for managing children’s challenging behaviour. Second, placement stability is a protective factor against involvement in the criminal justice system, but almost half (48%) of children in residential provision have had four or more placements compared with 28 per cent of those in foster care. Third, children in children’s homes are three times as likely to be placed more than 20 miles outside their local authority boundary than those living with foster carers. Increased distance from home is, in turn, associated with a higher likelihood of going missing; children in children’s homes are nine times as likely to be reported as missing from their placement as those in foster care, automatically generating a notification to the police, and raising the risk that children will get in trouble while they are not residing in their placement.
The Howard League argues that each of these factors is exacerbated by the fact that local authorities increasingly rely on private providers for residential placements which accounted for 73 per cent of the 1760 children’s homes in England in 2014. Staff in private residential provision are likely to be lower paid and to work longer hours, protocols between the police and local authorities on the policing of children’s homes are less likely to be observed and private providers are more likely to be motivated to site premises in areas where properties are cheaper rather than by concerns to minimise distance from home.
The report points out that, as corporate parents, local authorities have a statutory duty to promote the welfare of children in their care, and other bodies, including the police, have a responsibility to co-operate with the local authority to do so. It concludes that, given the adverse implications for children of involvement in the criminal justice system, these statutory obligations are in many instances not being met: Action needs to be taken to prevent the unnecessary criminalisation of young people in children’s homes. This is not just a moral responsibility; it is a legal requirement. Information on the criminalisation of children in care, relative to the general population, is given in Children looked after in England including adoption: 2014 to 2015, published by the Department for Education and available at: www.gov.uk/government/statistics/children-looked-after-in-england-including-adoption-2014-to-2015 Criminal care: children’s homes and criminalising children is published by the Howard League for Penal Affairs and is available at: www.howardleague.org/fileadmin/howard_league/user/pdf/Publications/Criminal_Care.pdf
The Rate of Allegations of Sexual Victimisation of Children Detained in State Juvenile Correctional Facilities in the United States more than Doubles between 2005 and 2012
A report by the US Bureau of Justice Statistics, published in January 2016, notes that in 2012, there were a total of 1478 allegations of sexual victimisation in juvenile correctional facilities as recorded by administrators of those institutions. Such allegations include incidents involving victimisation by other children as well as by staff and encompass those recorded in state juvenile institutions as well as local or private correctional facilities.
As shown in Table 3, between 2005 and 2012, there has been a considerable decline in the total number of allegations recorded of 28 per cent, notwithstanding that the most recent year was characterised by a substantial rise. The decline in rate of allegation per 1000 children over the same period was broadly similar. The overall pattern however disguises significantly different trends in state and local or private facilities. In the former, the number of allegations rose from 771 to 865, an increase of more than 12 per cent; conversely, in private facilities, the fall has been more pronounced than the general trend, with a decline of more than 50 per cent.
Recorded allegations of sexual victimisation in juvenile correctional facilities 2005–2012: absolute numbers and rate per 1000 children.
The reduction of allegations in local or private institutions is partly explained by a contraction in the number of children placed in such establishments and, as a consequence, the fall in the rate per 1000 children was much less marked, at just 12 per cent, and showed considerable fluctuation over the period. Conversely, the increase in the rate of allegations in state institutions was relatively consistent and considerably higher than the absolute rise: the number of allegations per 1000 children detained more than doubled over the 7-year period.
It is not clear why trajectories should differ so markedly between the two types of facilities. The authors of the report speculate that the divergent trends might reflect differences in the population of children detained, with state facilities accommodating young people with more serious behavioural difficulties or other risk factors for sexual victimisation. Alternatively, they might be an artefact of the different reporting capabilities of different sites with state institutions having more effective recording mechanisms.
Of the 9494 allegations recorded between 2007 and 2012, more than half (55%) involved non-consensual sexual acts or abusive sexual contacts between young people, with the remaining 45 per cent relating to incidents of staff sexual misconduct with, or sexual harassment of, young people. There was again a notable difference between types of facilities with almost 58 per cent in incidents in state facilities pertaining to staff misconduct compared with just one-third in local or private facilities.
On investigation, the majority of incidents were found to be either unsubstantiated (there was not enough evidence to determine whether or not the alleged incident had occurred) or unfounded (the evidence indicated that the alleged incident did not occur). Nonetheless, over the 5-year period, 1686 incidents were substantiated, an average of 281 per annum. The large majority (three-quarters) of substantiated incidents concerned youth on youth sexual victimisation but, between 2007 and 2012, there were 404 substantiated incidents of staff sexually victimising children. Of these, about half were classified by the institution as ‘sexual relationships between youth and staff that appeared to be willing’, but the report notes that Regardless of how juvenile correctional authorities reported these incidents, they were considered an abuse of power, involved an unknown level of coercion, and were illegal. Sexual victimization reported by juvenile correctional authorities, 2007–12, by Allen J. Beck and Ramona R. Rantala, is published by U.S. Department of Justice and is available at: www.bjs.gov/content/pub/pdf/svrjca0712.pdf
Half of Children Aged 8–11 Years Referred to the Scottish Children’s Reporter for Offending have been Involved with Services for at Least 5 Years
The minimum age of criminal responsibility for children in Scotland is currently 8 years, the lowest in Europe. The minimum age of prosecution was, however, raised to 12 years in 2010 and the Scottish government established an independent advisory group, which met for the first time in November 2015, to consider whether the age of criminal responsibility should also be increased. At present, children aged between 8 and 11 years can be referred to the Children’s Reporter on offence grounds who may arrange for the case to be heard at Children’s Hearing. Where offence grounds are accepted or established, they are treated as convictions which can, depending on the nature of the offence, be disclosed indefinitely. As a consequence, a referral on offence grounds can have life-long implications.
Research published in March 2016 explores the backgrounds of children below the age of 12 years referred to the Children’s Reporter and the outcomes in the 12-month period following the incident that led to referral. The findings provide evidence that have informed the deliberations of the Advisory Group on the Minimum Age of Criminal Responsibility. The report of the Advisory Group was also published in March 2016.
Referrals to the Children’s Reporter on offence grounds, for all children, fell by 63 per cent between 2010/2011 and 2014/2015, albeit with a small rise in the most recent 12 months. As shown in Table 4, the decline for children below the age of 12 years has been more pronounced at 73 per cent; for children aged 8 or 9 years it was higher still at 78 per cent. This reduction is likely to be explained, at least in part, by the Scottish government’s introduction of a ‘Whole Systems Approach’ to reduce offending by children in 2011, which includes as a central element ‘timely and effective intervention to minimise the number of children in Criminal Justice and formal processes’.
Children referred to the Children’ Reporter on offence grounds by age range: 2010/2011 to 2014/2015.
During 2014/2015, the three most common offences leading to referral for children aged 8–11 years were assault, threatening or abusive behaviour. Using the Scottish Children’s Reporter Administration’s framework for decision making, 71 per cent of incidents were assessed as being of low gravity and just 10 per cent were high. The large majority of victims (81%) were also children and two-thirds of these were of similar ages to the child offending against them. Of the 17 identified adult victims, nine were teachers or residential unit workers.
Examination of the backgrounds of 100 children referred during 2013/2014 indicated that 23 per cent had problems with mental ill health and 39 per cent had a disability and a physical or mental health problem. A total of 53 per cent of the sample had educational concerns in terms of behaviour in school, attainment or attendance; and half of this population had a recorded disability and/or mental health problems. One-third of those with educational concerns had been excluded from school on at least one occasion. One-quarter of the sample were recorded as having been victims of physical or sexual abuse. Two children had been physically and sexually abused. For a further 37 children, no information was available to indicate whether they had been abused or not.
These backgrounds of adversity were reflected in a high level of prior involvement with statutory services. A total of 71 per cent of children had been involved with support services for at least 1 year prior to the incident which led to them being referred to the Children’s Reporter; more than half had been involved with services for at least 5 years prior to the relevant offence. Moreover, three-quarters of the sample had been referred previously on one or more occasions to the Children’s Reporter. While previous referrals were predominantly on offence grounds this was not exclusively the case. More than a quarter of children were already subject to a compulsory supervision order at the time of the current referral.
Where the Reporter considers that compulsory measures of supervision are required, a children’s hearing is arranged for the child. As shown in Table 5, only 6 children out of the 100 in the sample were referred to a children’s hearing during 2013/2014. In almost 40 per cent of cases, it was decided that no action was necessary. In a further 30 per cent of cases, sufficient measures were already in place to address the child’s problems.
Reporter’s decisions for sample of children referred on offence grounds: 2013/2014.
Despite the fact that so few referrals resulted in a significant new intervention, there was a 3-month gap between the offending episode and the decision in 54 per cent of cases; for 14 children, the delay was more than 6 months.
At 12 months after the decision, more than half (n = 54) of the children had had no further referrals to the Reporter, 30 children had had one or more further offence referrals, 29 had had one or more non-offence referrals, and 16 had had referrals made on both grounds. In total, 29 children were subject to compulsory supervision orders, but a majority of these orders were imposed made for non-offence incidents. A total of 21 children were accommodated by the local authority.
For more than one-third of children, the incident that led to referral was part of a pattern of offending behaviour and the circumstances of this group were particularly marked by disadvantage. Mental health concerns had been identified for 43 per cent of this cohort, one-third of them were identified victims of prior physical or sexual abuse, and 48 per cent lived in homes where there was domestic violence. Problems with parenting were common: more than half of parents had a history of offending (54%), a history of violence or aggression (51%), and almost half (46%) were known to use drugs. Where sibling information was available, 91 per cent were known to statutory services and 80 per cent had referrals to the Reporter on non-offence grounds.
A higher proportion of this group were subject to a compulsory supervision order 12 months after the decision (48%), but the majority of the orders were linked to non-offence grounds. More than 80 per cent of children whose offence was part of a pattern of behaviour were in receipt of support 12 months after referral although, in many cases, a similar level of support was available at the time of the referral. For those children on whom information was available, 12 had demonstrated improvements in behaviour, the behaviour of 12 had deteriorated and there was no change in five cases. The pattern in relation to educational engagement was more promising: 15 children’s engagement had improved, 7 had declined, and in one case there was no change.
Accordingly, almost all the children demonstrating a pattern of offending were exposed to risks likely to pre-dispose them to problems of mental ill health and challenging behaviour, and the large majority had parents whose circumstances limited their ability to provide consistent care. Current arrangements in Scotland allow referrals to the Children’s Reporter on offence grounds for this group of children, but the authors of the research question the extent to which this is necessary, effective or appropriate. Most referrals were for low level offending and resulted in little additional action being taken to that already in place. Moreover, in the event that the minimum age of criminal responsibility was raised to 12 years, thereby precluding referral on offence grounds for this age group, most of the children in the sample with a pattern of offending would still qualify for referral on non-offence grounds without incurring a criminal record.
On the basis of such considerations, the Advisory Group on the Minimum Age of Criminal Responsibility took the view that the evidence supports a rise in the age of criminal responsibility and their report accordingly recommends that ‘the Scottish Government and Scottish Parliament take early action to raise the age of criminal responsibility to 12 years’. The report also proposes that a study should be commissioned to ascertain whether debarring referrals to the Children’s Reporter for children aged 8 to 11 years ‘will create any particular skills or knowledge gaps across those working with, or making decisions about, children displaying harmful behaviours’. It argues further that the police should be given a power, in serious circumstances, to take a child to a place of safety, to allow necessary enquiries to be made.
In order to ensure that children referred under the current arrangements do not continue to be adversely affected in later life, the Group recommends that no conviction or offence ground referral under the age of 12 years should be disclosed other than in exceptional circumstances and where independent ratification as to the necessity of disclosure is acquired. The report also proposes that ‘consideration is given to ceasing the disclosure of convictions accrued under the age of 18, with a provision to disclose details of such conduct … following independent ratification’: Backgrounds and outcomes for children aged 8 to 11 years old who have been referred to the Children’s Reporter for offending, by Gillian Henderson, Indiya Kurlus and Gwen McNiven, is published by the Scottish Children’s Reporter Administration and is available at: www.scra.gov.uk/wp-content/uploads/2016/03/Backgrounds-and-outcomes-for-children-aged-8-11-years-old-who-have-been-referred-for-offending.pdf The Report of the Advisory Group on the Minimum Age of Criminal Responsibility is published by the Scottish Government and is available at: https://consult.scotland.gov.uk/youth-justice/minimum-age-of-criminal-responsibility/supporting_documents/00497071.pdf