R (Howard League for Penal Reform) v Secretary of State for the Home Department

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeMr Justice Munby,MR JUSTICE MUNBY
Judgment Date29 November 2002
Neutral Citation[2002] EWHC 2497 (Admin)
Date29 November 2002
Docket NumberCase No: CO/1806/2002

[2002] EWHC 2497 (Admin)

IN THE HIGH COURT OF JUSTICE

Royal Courts of Justice

Strand,

London, WC2A 2LL

Before

The Honourable Mr Justice Munby

Case No: CO/1806/2002

Between
The Queen (on the application of the Howard League for Penal Reform)
Claimant
and
The Secretary of State for the Home Department
Defendant
and
Department of Health
Interested Party

Mr Ian Wise (instructed by the claimant's legal officer Michael Grewcock) for the claimant

Ms Eleanor Grey (instructed by the Treasury Solicitor) for the defendant

The interested party filed evidence but was neither present nor represented

Mr Justice Munby
1

Introduction

2

1. These proceedings raise important questions as to the duties owed by the State to the children – young people under the age of 18 – whom it detains.

3

2. The proceedings have been brought by The Howard League for Penal Reform whose history and credentials need no introduction. It undoubtedly is, as it claims to be, the leading non-governmental organisation in this country concerned with penal issues and policy. Here I need only to note that in the last decade or so it has had a particular focus on children and young people in the criminal justice system.

4

3. It is not disputed by the defendant that the Howard League has a “sufficient interest” in the matter so as to give it locus to make the current application: R v Secretary of State for Foreign and Commonwealth Affairs ex p World Development Movement Ltd [1995] 1 WLR 386 and R v Somerset County Council ex p Dixon [1998] Env LR 111.

5

Children detained by the State

6

4. I am not concerned with those children whom the State detains for the purposes of psychiatric or other medical treatment, either in accordance with the provisions of the Mental Health Act 1983 or pursuant to its parens patriae powers (as to which see Re C (Detention: Medical Treatment) [1997] 2 FLR 180). Nor am I concerned with those children detained within the care system.

7

5. I am concerned only with those children detained within the criminal justice system. Such children are accommodated in one or other of three different types of institutions:

i) secure units (LASSUs) run by local authorities: these accommodate children between the ages of 10 and 17;

ii) young offender institutions for juveniles (YOIs) run by the Prison Service: these accommodate children between the ages of 15 and 17; and

iii) secure training centres (STCs) operated by private sector companies under contracts managed by the Youth Justice Board (YJB), which was established under the Crime and Disorder Act 1998: these accommodate children between the ages of 12 and 14.

8

6. There are, in England and Wales, 28 LASSUs, 18 YOIs for children (14 for boys and 4 for girls – these latter being in fact separate young offender units within female adult prisons) and 3 STCs.

9

7. Children arrive in LASSUs either via the criminal justice system (cf Re G (Secure Accommodation Order) [2001] 1 FLR 884) or via the care system (as to which see section 25 of the Children Act 1989). Children arrive in YOIs and STCs exclusively via the criminal justice system, either on remand pending trial or after conviction in the criminal courts. The allocation of children detained within the criminal justice system has since April 2000 been the responsibility of the YJB.

10

Young offender institutions for juveniles (YOIs)

11

8. I am concerned only with children in YOIs.

12

9. YOIs are regulated by the Prison Act 1952 and by The Young Offender Institution Rules 2000, SI 2000 No 3371, made by the Secretary of State for the Home Department in pursuance of powers conferred on him by section 47 of the 1952 Act.

13

10. There are at present some 3,000 children in YOIs. Somewhere in the region of 1,000 are aged either 15 or 16. The rest are aged 17. They are, on any view, vulnerable and needy children. Disproportionately they come from chaotic backgrounds. Many have suffered abuse or neglect. The view of the Howard League is that they need help, protection and support if future offending is to be prevented.

14

11. Statistics gathered by the Howard League from a variety of governmental and non-governmental sources in the period 1997–2000 paint a deeply disturbing picture of the YOI population. Over half of the children in YOIs have been in care. Significant percentages report having suffered or experienced abuse of a violent, sexual or emotional nature. A very large percentage have run away from home at some time or another. Very significant percentages were not living with either parent prior to coming into custody and were either homeless or living in insecure accommodation. Over half were not attending school, either because they had been permanently excluded or because of long-term non-attendance. Over three-quarters had no educational qualifications. Two-thirds of those who could be employed were in fact unemployed. Many reported problems relating to drug or alcohol use. Many had a history of treatment for mental health problems. Disturbingly high percentages had considered or even attempted suicide.

15

12. Thus the YOI population as it arrives into the criminal justice system. The Howard League identifies four problems in particular affecting children inside YOIs:

i) bullying, on a very large scale;

ii) drug use, on a very significant scale;

iii) self-harming by a significant minority of inmates (there were 944 recorded incidents of self-harm in YOIs between 1998–1999); and

iv) suicidal thoughts and, in a few cases, suicidal attempts.

16

The legal framework – domestic law

17

13. Central to the issues I have to determine is the proper relationship between two pieces of legislation serving social purposes which are neither the same nor necessarily easy to reconcile: the Prison Act 1952 and the Children Act 1989. I shall return in due course to consider the 1952 Act and the regulations made under it. But it will assist to place the controversies before me in their proper context if I first briefly summarise the provisions of the 1989 Act so far as they are relevant for present purposes.

18

Domestic law – the Children Act 1989

19

14. The 1989 Act consists of Parts I to XII. Part I is introductory. Part II, headed “Orders with respect to children in family proceedings”, relates to what family lawyers conventionally call private law proceedings. It is not relevant for present purposes.

20

15. Parts III, IV and V relate to the functions, powers, duties and responsibilities of local authorities, including in respect of what family lawyers conventionally call public law proceedings.

21

16. Central to the matters in issue before me are Part III, headed “Local authority support for children and families”, and Part V, headed “Protection of children”. Two provisions in particular are important.

22

17. The first, in Part III, is section 17(1)(a) which, complemented by Part I of Schedule 2 to the Act, imposes on every local authority

“the general duty … to safeguard and promote the welfare of children within their area who are in need”.

23

18. Section 17(10) provides that for the purposes of the Act:

“a child shall be taken to be in need if –

(a) he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services by a local authority under this Part;

(b) his health or development is likely to be significantly impaired, or further impaired, without the provision for him of such services; or

(c) he is disabled”.

24

19. Section 17(11) defines “development” as meaning “physical, intellectual, emotional, social or behavioural development” and “health” as meaning “physical or mental health”.

25

20. Section 17 requires to be read together with sections 20(1) and 20(4), which provide that:

“(1) Every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of –

(a) there being no person who has parental responsibility for him;

(b) his being lost or having been abandoned; or

(c) the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care.

(4) A local authority may provide accommodation for any child within their area (even though a person who has parental responsibility for him is able to provide him with accommodation) if they consider that to do so would safeguard or promote the child's welfare.”

26

21. The other important provision, in Part V, is section 47(1)(b), which provides that:

“Where a local authority … have reasonable cause to suspect that a child who lives, or is found, in their area is suffering, or is likely to suffer, significant harm, the authority shall make, or cause to be made, such enquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the child's welfare.”

27

22. I should also refer to section 46(1) which provides that:

“Where a constable has reasonable cause to believe that a child would otherwise be likely to suffer significant harm, he may –

(a) remove the child to suitable accommodation and keep him there; or

(b) take such steps as are reasonable to ensure that the child's removal from any hospital, or other place, in which he is then being accommodated is prevented.”

28

23. “Harm” for these purposes (see section 105(1)) has the same meaning as in section 31(9), which provides that:

““harm” means ill-treatment or the impairment of health or development;

“development” means physical, intellectual, emotional, social or behavioural development;

“health” means physical or...

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