Solitary punishment in Young Offenders Institutions

Concerns are rife about the practice of subjecting children to solitary confinement in young offender institutions (YOIs). This is defined by the UN’s ‘Mandela rules’ on the standard minimum treatment of prisoners as the ‘confinement of prisoners for 22 hours or more a day without meaningful human contact’. Official reports of children being separated from their peers and having their access to meaningful contact, adequate healthcare and activities severely restricted strongly indicate that the UK may be implementing practices that meet the definition.

The case of AB

AB had a traumatic childhood of physical and emotional abuse – including witnessing domestic violence and his uncle’s fatal overdose. He was eventually diagnosed with ADHD, PTSD and conduct disorder. In and out of care, it was no surprise when he ended up at Feltham Young Offender Institute. Prejudice and deficiencies in the welfare and criminal justice systems frequently churn out care leavers and mental health patients as criminals. Underfunding and prevalent attitudes that young people in care are already on a pathway to delinquency mean that children like AB start off with an uphill battle.

At Feltham, AB found himself locked up alone in a cell for more than 22 hours a day and separated from his peers for more than 100 days in total. In January 2019, the court of appeal confirmed that his isolation breached human rights law because the correct procedures were not followed.

One year on, HM Inspectorate of Prisons (HMIP) found that ‘over half of children in YOIs … reported that they had been kept locked up and stopped from mixing with other young people as a punishment, including time spent in a segregation unit or in their own room’. It stated: ‘Nearly all separated children spent long periods of time in their cell without any meaningful human interaction. [Some] were unable to access the very basics of everyday life, including a daily shower and a telephone call. In the worst cases children left their cells for just 15 minutes a day.’

The government has denied placing children into solitary confinement. But the children’s commissioner has said, ‘Our research suggests that the conditions some children are exposed to do fit the definition.’ Locked away in segregation units – including one described by HMIP as ‘not suitable for children’ and ‘dark and oppressive’ with ‘dirty’ cells – it is hard to escape the conclusion that children are indeed being subjected to solitary confinement.

Prevention not punishment

The separation of children has a strong potential for triggering or exacerbating mental health issues and rage. This makes little sense when considering the primary aim of youth justice, which is not to punish children but to prevent recidivism. Children are by definition not mature – and this is reflected in their decision-making ability in development. Since children are more susceptible to making mistakes, youth justice must operate, where possible, to give them a meaningful chance to move on and succeed in life.

This cannot be achieved by separating a child, so that their access to other people, education and healthcare may be severely restricted, and they may be traumatised or re-traumatised by the experience of segregation. Indeed, HMIP’s 2020 report identified a key concern that the arrangements for separating children in YOIs did ‘not safeguard children’s well-being’.

One cited example of poor healthcare involved eight children with mental health presentations. Together, they served a total of 373 days of separation pending their transfers to hospital. During this time, none received the therapy they needed.

The HMIP report also noted that medics and managers sometimes failed to conduct daily and weekly checks on separated children. At Feltham, there was a lack of evidence of daily checks by managers or healthcare staff on four separated children at risk of self-harm or suicide. Even when such checks were made, ‘nurses often did not insist on the cell door being opened during their visits’.

Meaningful contact

On the issue of ‘meaningful contact’, HMIP inspected 57 children’s files. It found information missing from four files, such that it was impossible to draw any reliable conclusions from them. In over half of the remaining files, the child reported having no daily contact with unit staff. These findings present major concerns about the safeguarding of these and other children.

Meaningful contact, according to the guidance document on the Mandela rules, refers to ‘the amount and quality of social interaction and psychological stimulation which human beings require for their mental health and well-being. Such interaction requires the human contact to be face to face and direct (without physical barriers) and more than fleeting or incidental.’

Yet, one child told HMIP, ‘Staff literally open your door for two seconds to give you your food.’ Another said, ‘Some staff just forget about me and ignore me and then give me a yellow card for using my bell.’ A third child reported on the consequences of seeking meaningful contact with peers: ‘I have a behaviour target to stop shouting through my door to the other boys on the unit, which I think is really unfair ’cause it is literally my only chance to chat to anyone. We’re not arguing or anything, we’re just chatting, having a joke and checking up on each other.’

Transparency and accountability

Isolating children poses major health and safety risks. This renders consistent and accurate record keeping and information sharing crucial to help provide a basic line of defence. Without conceding the legitimacy of child segregation, adequate administrative systems – and staff compliance with them – would at least allow children’s welfare to be closely monitored.

According to the HMIP report, however, arrangements for separating children were generally so poor that managers could not find out ‘how many children [were] separated or for how long, or what interactions, education or healthcare input they have received’. This casts major doubt on the inspected YOIs’ administrative systems and their commitment to transparency and accountability. The lack of secure paper trails through which shortfalls could be identified and investigated, begs the question: if managers could not always access such basic data, how could anyone else?

Earlier this year, the former justice minister, Wendy Morton, responded to the damning HMIP report. She argued that separation may sometimes ‘be necessary to prevent someone seriously hurting themselves or others’ but conceded that the state was ‘failing some of the children’. It is yet to be seen whether the government’s promises to do better are more than fig-leaf responses to an ongoing scandal.

As a criminal defence barrister, I have seen the realities of the UK’s statistics on the demographics of criminalised children. My clients often fit at least one of these categories: care leaver, mental health concerns (diagnosed or not), and BAME or low-income background. With austerity and a criminal justice system imbued with prejudice, I have little faith that violations will stop with the case of AB.

Annahita Moradi reports for the Red Pepper on the treatment of children in YOIs. This article was published by, and is the property of, the Red Pepper.

ANNAHITA MORADI © 2020

BARRISTER

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