18 April 2018

Today the Joint Committee on Human Rights has called on the UK government to ban the use of pain inducing techniques and solitary confinement of children in detention as these are not compatible with human rights. Commenting on the report of the JCHR's lastest Inquiry, the Committee Chair, Harriet Harman MP said: “The UK is under international and domestic legal obligations to ensure that children are not subject to cruel, inhuman or degrading treatment. The Government must comply with its legal obligations and ensure that children in detention are not subject to solitary confinement or unnecessary or disproportionate uses of restraint.”

Where are children being restrained and confined?

Many institutions that detain children physically restrain them and/or separate them from what the JCHR calls “normal human contact”. They note that this can involve a range of actions, including controversial restraint methods such as prone or face down restraint* and total isolation of a child. Originally the Inquiry focused on children serving custodial sentences in Young Offenders’ Institutes (YOI) and Secure Training Centres, and those detained in CAHMS units due to mental health issues. However, due to the evidence received, the JCHR then also looked at Secure Children’s Homes (SCH), and sought evidence about children with autism, learning disabilities or both, detained in Assessment and Treatment Units (ATUs) and other inpatient units.

The JCHR report notes:

  • Around 1,200 children with mental health issues are detained in CAMHS Tier 4 units, under the mental health legislation.
  • Around 250 children with autism and children with learning disabilities are detained in ATUs, CAMHS units or other inpatient units, under the mental capacity legislation or mental health legislation.
  • Around 900 children are detained in the Youth Secure Estate under custodial sentences for criminal convictions.
  • Around 100 children aged 10–14 years are detained in SCH for welfare reasons.

What does human rights have to do with it?

There is no doubt that the use of restraint and separation of children (or adults) raises significant human rights issues. Detaining a person in any of the settings outlined above is about their right to liberty, protected under the Human Rights Act (HRA, Article 5). This right can only be restricted in a limited number of situations, such as mental health medical reasons or when sentenced to imprisonment. However, as BIHR frequently tells those we work with, you do not leave human rights at the door simply because you’ve been detained.

The HRA sets out a legal duty on public authorities, and those delivering services such as health, education and penal services, to respect and protect human rights. So even if a restriction of liberty is permitted (and that isn’t always the case, sometimes there is no lawful basis), all of a child’s other rights also apply when they are detained. This includes not being treated in an inhuman or degrading way (Article 3), having their life protected and not put at risk (Article 2) and respect for their well-being, choice, control, privacy and relationships with other people (Article 8). Added to this is the right to not be discriminated against in relation to those rights (Article 14). For example we frequently see that children and young people over 18 are treated more poorly by health and care services, because they are young and have a learning disability, autism, or both, and concerns around differences of treatment due to gender and ethnicity as well. In addition, the UK has also made an international commitment to honour the Rights of the Child as set out in the United Nations treaty.

Evidence to the JCHR

The evidence submitted to the JCHR demonstrates there is still a long way to go to make sure that children’s human rights are being respected and protected in the UK. As well as evidence from medical professionals, inspectors, lawyers, and staff who work in detaining services, the JCHR also heard directly from people about their experiences of restraint and separation:

"I remember it being painful, but for me personally never for an extended period of time, because for me the idea of further restraint was just so uncomfortable and distressing that I would just stop and comply with whatever from there." (Rosie)

"I do not have scars or bruises to show for it, but I was in pain." (William)

"He had his arm broken in a restraint, the right humerus bone. His arm was wrenched up behind his back until the bone snapped." (Julie Newcombe, describing the result of a restraint on her son Jamie who has autism when he was kept in a hospital unit as a child.)

Report recommendations

The report recommends banning the use of pain inducing techniques and solitary confinement of children in detention. The JCHR make a number of further clear and specific actions that should be taken to further protect children’s human rights. Of particular relevance for our practical human rights work is the recommendation that “There is a need for more staff who are better trained, and a better mix of skills to relate to children and to de-escalate incidents without resource to restraint or separation.”

JCHR Chair Harriet Harman MP said further:

“Our inquiry received unanimous evidence from medics, inspectors, lawyers, and staff who work in detention, that restraint and separation are harmful to children and should be avoided if at all possible. This was brought into stark relief by the harrowing evidence we heard from young people, and from parents who told us about the impact on their children.

“Restraint or separation might seem to solve immediate problems in custody or hospital. But both cause short term and long term harm to children. They can contribute to a vicious circle of problems which can continue into the longer term future and even affect life chances into adulthood. Restraint can be painful, cause injuries, be distressing at the time and cause long term psychological harm. It can make a child’s time in detention counterproductive, inhibiting the provision of care, suggesting to children that violence is a way to solve problems, and can compound and reproduce the harms associated with early childhood exposure to abuse neglect and violence. In some contexts the use of these techniques can amount to inhuman and degrading treatment and should be banned.”

Human rights practice

The issues raised by the Inquiry are ones that we face every day at BIHR, working with advocacy, parent and peer support groups, as well as young people, organisations that detain children and regulators. The reality is that for most people, whether they are a person who is detained or a staff member working at a detaining service, there is little knowledge about the legal duty to respect and protect human rights under the HRA. Less still about how you apply that in your everyday life and work to make sure public services are rights-respecting in their decisions, practices and policies.

It is vital that staff in services receive practical HRA training and capacity-building which enables them to make their legal duty to respect and protect people’s human rights the underpinning driver of their everyday work. So too must regulators and others ensure they are monitoring and inspecting on human rights standards, and using their powers to ensure accountability. Whilst people using services, their families and carers, must also know their rights, it isn’t good enough to leave the challenging of poor and dangerous practice to people who have already been placed in a vulnerable situation. A systemic approach is needed to make sure children in detention situation (and indeed any person receiving public services) have their human rights respected and protected.

Positive human rights practice in detention settings is possible. Our work with advocacy and support groups and services, including CAMHS, has shown that when people can understand not only the law, but how to put in to practice, there can be positive change that makes people’s dignity and equal treatment the priority. You can read more about the Independent Evaluation of our human rights capacity and confidence building work here, and access our practitioners toolkit on human rights in a range of mental health and capacity settings here, including CAMHS. We’re also involved with the Reducing Restraint Network, and recently collaborated on national restraint training standards, promoting a human rights approach, find out more here.

*As the JCHR report notes: “Staff in ATUs, CAMHS, YOIs and STCs are permitted to put children “to the floor” in restraint, either supine (face-up) or prone (face-down). There are particular concerns about the dangers and distress of prone restraint … There is a general consensus that prone restraint should be used only in “very exceptional circumstances”. [Paragraph 32]