If the parents of a child, by way of punishment for bad behaviour, confined that child to a ‘dark, dirty, poorly lit and inadequately ventilated’ room and only allowed the child out for only 30 minutes in every 24 hours, keeping this up for almost 3 months, the local authority would immediately apply to the court for a care order to remove them from their parents’ care. To obtain such an order, the local authority would be required to show that the child was suffering, or at risk of suffering, ‘significant harm’ because the standard of care given by the parents was not what it would be reasonable to expect a parent to give to him. It is almost inconceivable that a court would not find this threshold to have been crossed.
The circumstances are so shockingly extreme that it would be likely that the police would be involved. The parents would be arrested, interviewed and in all likelihood, prosecuted. Prison sentences would be a probable outcome.
In those circumstances, the state says that it has a responsibility to protect children and to punish those who mistreat them.
Between 30 March and 12 April 2016, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (‘CPT’) visited a number of penal institutions in the UK, including Cookham Wood Young Offender Institute, near Rochester in Kent. The CPT is part of the Council of Europe, which, readers may recollect from an earlier blog, is the body responsible for upholding the European Convention on Human Rights. At the time of the CPT visit, there were 152 young people aged between 15 and 17 years detained there, against an operational capacity of 196.
What the CPT found was shocking. There were 43 of the juveniles detained who were not, for a variety of reasons, able to take part in education, or any other activities. The majority of these were offered around three and a half hours each day outside their cells to exercise, associate and eat communally. For the rest of the time they were confined to their cells. A significant minority of them however, were on what was described as a ‘separation list’. This was indicated by ‘a vivid pink sign stuck on the cell door that read “do not unlock”’. For them, life consisted of solitary confinement within the cell, save for 30 minutes each day, when they would be allowed out for exercise and to collect their food, which would then be eaten alone in the cell. For 23½ hours each day they were confined alone, with only a television for company. Some were on this list due to repeated violence and others for their own protection.
The CPT report describes meeting a 15-year-old who had been held in these conditions for several weeks and had no information about how long he would continue to be held in this way. Another, juvenile was described as spending ’23.5 hours a day lying on his bed, under the covers, blankly looking at a TV screen, talking and meeting no one’. Such conditions, CPT say, are effectively solitary confinement and amount to inhuman and degrading treatment.
The use of this regime as a means of controlling violence is ineffective and ultimately, self-defeating. The Commission records that it provokes anxiety and feeds a tendency to lash out at others. One young person interviewed described how the isolation made him so frustrated that, as soon as he was released from his cell, he took out his frustration on the nearest available people, whether staff or other inmates, by attacking them. This of course returned him to the separation list which had caused the violence in the first place and a self-perpetuating cycle of violence, confinement, frustration and further violence was set in motion. To their credit, the staff largely accepted this analysis, but felt they had no other means available to them to manage gang rivalries and other security issues.
There is no doubt that violence was endemic in Cookham Wood. On average, there were 44 assaults every month either on other inmates or on staff. Many of the young people detained there were reported to be ‘too scared to leave their cells’.
In addition to prisoners who have been placed on a separation list, the Young Offender Institution Rules 2000 (as amended) allow the use of ‘removal from association’ as a disciplinary sanction. Prisoners subject to this punishment at Cookham Wood were usually held in a segregation unit known as the Phoenix Unit. These cells were described by the CPT as ‘dirty, dark, poorly lit and inadequately ventilated.’ Periods of segregation of up to 80 days were recorded. The conditions in this unit were, again, akin to solitary confinement.
All the available good, scientific evidence clearly shows that placing adolescents in solitary confinement causes damage to their social, psychological and neurological development, because at their age the brain is still developing. That damage may be irreversible.
Many states have banned solitary confinement for under 18’s. Rule 45(1) of the United Nations Standard Minimum Rules on the Treatment of Prisoners, known as the ‘Nelson Mandela Rules’ expressly prohibits the imposition of solitary confinement on juveniles. Rule 67 of the United Nations Rules for the Protection of Juveniles Deprived of their Liberty further provides:
‘67. All disciplinary measures constituting cruel, inhuman or degrading treatment shall be strictly prohibited, including corporal punishment, placement in a dark cell, closed or solitary confinement or any other punishment that may compromise the physical or mental health of the juvenile concerned. The reduction of diet and the restriction or denial of contact with family members should be prohibited for any purpose. Labour should always be viewed as an educational tool and a means of promoting the self-respect of the juvenile in preparing him or her for return to the community and should not be imposed as a disciplinary sanction. No juvenile should be sanctioned more than once for the same disciplinary infraction. Collective sanctions should be prohibited.’
We therefore appear to have a system for controlling young people who are detained by the state which:
- Would result in the child being removed from parents, by the same state, if carried out in the child’s home;
- Would be likely to result in the state applying criminal sanctions if it were used by the child’s parents;
- Is ineffective in the short-term, because it produces further violence as soon as the victim is brought out of solitary confinement;
- Leaves the subject young person more damaged than they were at the outset and consequently, less able to function after they are released and more likely to cause difficulties and cost to society. It is therefore counter-productive in the longer term.
The current approach to young offenders appears to be fundamentally flawed. It makes no economic sense, because it is even less likely that the inmates will ever become productive and contributing members of society. It is legally incomprehensible, as it permits the state to act towards children in ways that citizens would be sanctioned for, without any evidence that it procures a greater good for society as a whole. It, moreover, flies in the face of the country’s international obligations which it voted for in the United Nations. Morally it is repugnant, because it inflicts permanent, serious harm on children, who, in many cases, have already been damaged by their life experiences of parental violence, poverty and substance abuse. It makes it more likely that they will go on to inflict similar harm on their own offspring so that the whole, costly cycle repeats inexorably.
I am however conscious that unless I can suggest something better, I should not criticise those who are trying to cope with the situation. Here the CPT offers a better-informed alternative than I could possibly presume to do. At paragraph 83 of their report they state;
‘The CPT has visited a number of juvenile establishments in several countries, which are juvenile-centred and based on the concept of small living units. These establishments are composed of small well-staffed units, each comprising a limited number of single rooms (usually no more than ten) as well as a communal area. Juveniles are provided with a range of purposeful activities throughout the day, and staff promote a sense of community within the unit. The CPT considers that this type of centre represents a model for holding detained juveniles in all European countries.’
We need to re-think our whole approach to juvenile justice. The current approach simply provides a feeder into already overcrowded and underfunded adult prisons. What if some of those young people could be diverted and our prison population started to fall? What if they were paying taxes and not costing taxes? What if we lived up to our promises?
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