DT, R (on the application of) v Secretary of State for Home Department [2004] EWHC 13 (Admin)

“young offender institutions, that is to say places for the detention of offenders sentenced to detention in a young offender institution or to custody for life”

“(1) Shall be liable to be detained in such place and under such conditions: a) as the Secretary of State may direct; or b) as the Secretary of State may arrange with any person.” a) as the Secretary of State may direct; or b) as the Secretary of State may arrange with any person.”

“I am writing to alert you to the possibility that the above named Section 91 detainees may need to be transferred to the Prison Service juvenile estate at short notice over the coming weeks.”

“15. ... On review of the statistical information available to me it seems clear that the secure accommodation places are being taken up by younger children and forcing the Home Secretary to place 15, 16 and 17 year old girls in prison service accommodation contrary to his policy. 26. In light of the information available it seems that the increase of custodial sentences and custodial remands for children 15 years and under has caused an increase in demand for beds in local authority secure children’s homes. As a result there has been a decline in the supply of beds for children, and in particular girls, aged 15-17 years. In the circumstances the prison service and YJB have made placement decisions on the basis of the supply of beds, rather than the individual needs of the child, to increasingly accommodate 16 and 17 year old girls in prison service accommodation.”

“[The claimant’s] parents have relocated to Newquay in Cornwall. They have repeatedly requested that their daughter be transferred to a custodial placement geographically closer to themselves, in order to facilitate more frequent physical contact between [D] and themselves. However [the claimant’s] parents do not want her education and in particular any possibility of her being able to achieve any academic qualifications to be affected. Once more I feel that I need to emphasise the fact that any transfer of [the claimant] to another custodial placement before she has sat her exams would have a severely negative effect upon her welfare.”

“In the light of this, the claimant’s wish to leave Stafford House once examinations were completed and her father’s desire that she be placed in an establishment, would facilitate visits, I made enquiries about alternative establishments. I concluded that the obvious alternatives were the Atkins Unit [in fact the Atkinson Unit], a local authority secure children’s home in Exeter, or the young offender wing at H.M.P. YOI, Eastwood Park, near Bristol.”

“She gravitates towards persons with a stronger presence/character than her own, this in turn leaves her exposed to vulnerable to risky situations (sic)”

“Vulnerable- does gravitate towards strong personalities – liable to be led astray”

“[The claimant] is due for release on 11 May 2003. She then plans to return to live with her parents who recently moved to Newquay in Cornwall. At [the claimant’s] last review, it was decided that once [she] completes her GCSE’s (her final exam is on 25 June 2002) we would request that she be transferred to a custodial unit nearer to her parents as they are finding it extremely difficult to visit her regularly. I understand there is a YOI facility in Bristol and the Atkins Secure Unit in Exeter which both accept females. [The claimant’s] parents have stated that they would find it a lot easier to visit either facility. In view of the above information, I would like to formally request the transfer of [the claimant] to either facility after 25 June 2002.”

“4. I would also add that the whole purpose in my writing to Stamford House on 22 April 2002 [RLM 1 page 19 to 20] was to elicit whether there was any reason why the claimant should not be moved to prison service accommodation. I would stress in this respect that, so far as vulnerability of a detainee or other special circumstances are concerned, the Section 92/53 Unit relies heavily on information provided by the current (and, if relevant, previous) secure establishment and the detainee’s Yot worker. In the period of nearly 6 years during which I have been responsible for placement and transfer decisions for section 92/53 detainees, it has very rarely been the case that both the establishment and the Yot worker have taken the view at the outset that there are no reasons why a transfer to prison service accommodation should not proceed. Had there been any concerns that the clamant was vulnerable or would be at risk or would be unable to cope in a Prison Service establishment such that a transfer to Prison Service accommodation would be inappropriate for her, Stamford House or the Yot worker would have raised those concerns. In the instant case, however, apart from the Yot worker’s request that any transfer should be delayed until after the claimant had finished her GCSE exams, no reasons were put forward as to why a transfer would not be appropriate. Against this background, the claimant appeared to be a particularly suitable candidate for a move in order to ensure that there would be much less risk of her bullying. 5. It has been suggested that I should have considered transferring the claimant to another LASCH. Whilst (assuming a place had been available, whether at the Atkinson Unit or another LASCH) this could (depending on the location of the LASCH) have facilitated family visits, it would not have freed up a space in the local authority secure estate for a more vulnerable girl, nor would it have addressed my concerns about bullying (paragraph 14 of my first statement refers). 6. In reaching the decision to transfer the claimant, I was conscious of not only her best interests but also those of other detainees and, in particular, the best interests of the much younger detainees held at Stamford House (and any other LASCH). Such detainees can be as young as 10; although there are considerably more 12 and13 years olds. The claimant increasingly appeared to have little in common with those she was detained with and this may well have led to the bullying and disruptive behaviour. In the circumstances it also appeared to be in the best interests of the claimant to move from Stamford house to a more mature environment which was more convenient for family visits.”

“In deciding on the appropriate placement, Juvenile Unit noted that DT would be 16 on completion of her examinations and would be nearly 17 on completion of the custodial part of her sentence. There was evidence that DT had bullied other children, but little evidence that she was herself vulnerable. There has never been any evidence of self-harm. In all the circumstances, and bearing in mind the need to free up places in LASUs for high priority cases, juvenile unit decided that DT should be placed in Eastwood Park.”

“The population of those under 18 for whom staff were caring was thus largely transient and unstable in every sense of the word. Of the 12 girls, three were at very serious risk of self harm and subject to very close monitoring. Indeed, the under 18 group seem to represent a microcosm of the entire population of D Wing.”

“Best interests of the child 1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. 2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures. 3. States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff as well as competent supervision.”

“Torture and deprivation of liberty (c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child’s best interest not to do so and shall have the right to maintain contract with his or her family through correspondence and visits, save in exceptional circumstances.”

“A reservation incompatible with the object and purpose of the present Convention shall not be permitted.”

“Where at any time there is a lack of suitable accommodation or adequate facilities for a particular individual in any institution in which young offenders are detained, or where the mixing of adults and children is deemed to be mutually beneficial, the United Kingdom reserves the right not to apply article 37 (c) in so far as those provisions require children who are detained to be accommodated separately from adults.”

“Where at any time there is a lack of suitable detention facilities or where the mixing of adults and children is deemed to be mutually beneficial, the United Kingdom, in respect of each of its dependent territories, reserves the right not to apply article 37(c) in so far as those provisions require children who are detained to be accommodated separately from adults.”

“In the case of females, there is some evidence that age-mixing is beneficial, and juveniles [i.e. under 18 year olds] are not held separately from adults.”

“As a consequence of these developments, those responsible for placing prisoners on behalf of the Secretary of State transferred an increasing proportion of the juvenile girls who would otherwise have been placed in prison to local authority secure accommodation. However, it was simply not possible to keep pace with demand and there came a point where there were insufficient beds available in local authority establishments to remove the remaining girls from prison; this despite the fact that the use of local authority accommodation for male and female juveniles had increased from 57 beds at start of 1997 to in excess of 180 by 1999.”

“26. The Ministerial statement was made in March 1999 in good faith against the above background. The Youth Justice Board took over the commissioning and purchasing of the juvenile secure estate in April 2000 and at the same time the Home Office made funds available for 72 additional STC places. The bulk of these, 64 places, were planned for autumn 2002, and the YJB was working on the basis that the commitment could be met by the end of 2002. However, the offending and sentencing climate changed in 2002, in a way that Ministers, accountable to Parliament and the public, could not ignore. First, responding to general concern about youth offending, in January 2002 the Lord Chief Justice gave a judgment that encouraged robust sentences for mobile phone robberies without distinction as to age: Attorney General’s Reference No 7 of 2002 (Christopher Sawyers), Steven James Q. [2002] EWCA Crim 127, January 29, 2002. This was widely reported and had an impact beyond the particular circumstances of mobile phones. The average net period in custody for DTO’s – for all offences – increased from 4.0 months in December 2001 to 4.7 months by summer 2003. 27. It was also evident to Ministers that there was a surge in street crime, particularly muggings, in a number of inner cities, with juveniles prominent amongst the offenders (for example, it was estimated that juveniles were responsible for 40% of street robberies). In response they established the “street crime initiative” to ensure that the various local services focussed on the need to tackle this problem, and in particular more reliably to bring offenders to custody and to ensure appropriate interventions with those who were brought to justice. As part of this they decided it was necessary to implement powers taken in s. 130 of the Criminal Justice and Police Act 2001 to permit secure remands for juvenile defendants with a record of persistent offending, as well as those facing serious charges. This was implemented in two stages – on 22 April 2002 and 16 September 2002 – in different parts of the country (the Criminal Justice and Police Act 2001 (Commencement No 6) Order 2002: 16 April 2002). 28. However, these measures were not taken in isolation or without regard to the consequences. The Government implemented “bail tagging” for 12 to 16 year old juveniles in two phases on 22 April 2002 and 1 June 2002 (The Criminal Justice and Police Act 2001 (Commencement No 4 Transitional Provisions) Order 2002, 16 February 2002); funded a progressive expansion of the “intensive supervision and surveillance programme” as an alternative to custody within the supervision order (Section 63 of the Powers of Criminal Courts (Sentencing) Act 2000, consolidated from Section 11 of the Children and Young Persons Act 1969); altered the criteria for early release of trainees under the DTO (within the existing early release power provided by Section 102(4) of the Powers of Criminal Courts (Sentencing) Act 2000 – consolidated from Section 75(4) of the Crime and Disorder Act 1998); and made available a facility to use up to 600 Prison Service young adult places for juvenile use. 29. Together these changes, along with some abatement in sentence lengths, are now bringing the juvenile population back down from its 2002 peak. On 31 October 2001 it was 2829; on 31 October 2002 it was 3175; and on 31 May 2003 it was 2838. It is again that background that the Youth Justice Board announced earlier this year the intention by a specific deadline – the end of 2003 – to take under 17 year old juvenile girls out of Prison Service custody.”

“Given that this PSO put section 92 detainees aged 15 to 17 on much the same footing as their DTO [Detention and Training Order] counterparts, there will be no significant resource implications for establishments in the Prison Service Under 18 Estate.”

“The designated officer’s decisions on the placement of section 90/91 offenders under 18 must be made on the merits of each individual case and by reference to a number of factors, including the age of the young person, the nature of their offence, the length of their sentence, their relative vulnerability or maturity, their ability to cope in a structured environment, their previous behaviour in detention, any history of self-harm or evidence of propensity for it, their educational needs, their health needs (both physiological and psychological), the proximity of their family or other support and the ease of access for visiting. In addition to these factors the designated officer must also take into account the Youth Justice Board’s views on the best use of the accommodation available when competing demands are to be met.”

“The objectives and mandatory requirements set out in PSO 4950 must also be applied by Governors to section 92 detainees in the Under 18 Estate with the following modifications.”

“It is important at the outset to make clear that the regimes for under 18 year olds are different because under 18 year olds are, as adolescents, different. In order for the regimes to be appropriate to the needs, abilities and aptitudes of the individuals and focused upon preventing offending, they must take into account the characteristics of adolescent behaviour: … [see below in that part of 4950 dealing with the regimes for young women] Underpinning the entire PSO is to belief that custody cannot just be about containment. However, if it is to have a positive influence we must provide regimes, which recognise that i) adolescents do change, ii) that adults matter to adolescents and iii) that adolescents need care and control.” … [see below in that part of 4950 dealing with the regimes for young women] i) adolescents do change, ii) that adults matter to adolescents and iii) that adolescents need care and control.”

“1.5 Regimes for adolescent women need to be appropriate to their particular needs, abilities and aptitudes. To do this they must take into account the characteristics of adolescent behaviour: I) the importance of peers and peer-pressure on behavior; II) their impulsiveness and inclination not to think ahead but to act to gratify immediate needs; III) emotional immaturity even when cloaked in physical maturity; IV) their capacity for being cruel to one another- hence the importance both of staff and peers providing role models, promoting good behaviour and of clearly defining and maintaining the boundaries of bad behaviour; V) the prevalence of impoverished upbringing in their backgrounds and a history of low achievement; VI) their potential to mature and grow out of crime. 1.6 Adolescent behaviour can also be influenced by the following: 1) the prevalence of abuse and implications this has for self-harm; 11) impoverished backgrounds; Ill) educational under-achievement and lack of work experience, IV) generational unemployment.”

“2.2.1 As important as the structure and features of the regimes, are the ethos and culture of the establishment in which the young woman is detained. If the new regimes are to give life to the principle of dealing with people as individuals, a positive ethos and culture must exist which recognises the rights and responsibilities of the individual. Central to this is the role of staff in promoting and protecting each young woman’s welfare. To discharge this duty effectively it is necessary to do more than merely protect the individual from harm. It requires governors to identify and meet the legitimate needs of each young woman by limiting the negative impact custody can have on the individual. The ethos of the institution must nurture that development. Critically it will depend upon the attitudes and behaviors of staff, which must be anti-discriminatory and age-appropriate. Governors must ensure that all staff are clear about their responsibility in all circumstances to deal with the young women in their care openly and fairly, and to be mindful of their vulnerability. This must be underpinned with appropriate training. 2.2.2 Governors must write and publish a statement of purpose for their establishment which succinctly and clearly encapsulates the principles and aims of the regimes and the ethos and values which underpin them [see Beeston, second statement, 10A], The statement must be consistent with the Prison Service’s statement of Purpose, the principal aim of the youth justice system and reflect the principles and spirit of the Children Act 1989 and the basis upon which the custody and care of young women are achieved. A signed copy of it must be prominently displayed in the pedestrian entrances to the establishment together with the establishment’s formal designation in law of its status as a YOI. Its purpose is to signal and to reflect the qualitatively different types of regimes which they operate for young women aged under 18.”

“To ensure that people, including contract staff, recruited or selected for work which will involve them in sustained and unsupervised contact with young women are suitable for that role. To ensure they receive appropriate training and support to enable them to work effectively.”

“The law generally requires young people under 21 who have been sentenced to detention in a YOI to be housed separately from persons over 21. Ten prisons within the female estate have accommodation designated as suitable for young offenders. Sentenced young women under 18 years of age are housed with other young offenders in this designated accommodation. Women’s prisons also house adult prisoners. It is not a legal requirement for young women who have not been sentenced or are on remand to be accommodated separately from adults. In general those aged 15-17 will serve their sentence in YOls, and those aged 12-14 in STCs or local authority secure accommodation except where individual assessment recommends otherwise. However, the Home Secretary has agreed that from April 2000, sentenced 15 and 16 year old young women will serve their sentence in Local Authority or other secure accommodation as it becomes available. In due course sentenced 17 year old young women will also be placed in other secure accommodation other than prisons. (Underlining added) The Children Act 1989 The Children Act 1989, doesnot apply to the regimes for the treatment of under 18 year olds in prison establishments. However, we are required to reflect the standards imposed by the Act through delegated legislation and Codes of Practice. The central tenet of the Act is the principle that safeguarding a child’s welfare is of paramount importance so that when decisions are made about a child, the primary consideration must be what is best to safeguard their welfare. The Prison Service has a responsibility to ensure that the welfare of each young woman in our custody is safeguarded. But it also has a responsibility to safeguard the welfare of all prisoners including the other young women in the establishment and to maintain a safe environment for staff and for visitors. These considerations, and that of safeguarding the public by executing the warrant of the court, must be born in mind when determining how the welfare of the individual is best safeguarded. The principles and standards set by the Children Act and its regulations are reflected in the emphasis this PSO places upon the importance of . the role of staff and their rigorous selection, training, management and support . enabling the development of the individual young woman; . maintaining safety and security; and, . preventing re-offending. Helping to prevent offending by the young women on our establishments helps safeguard their welfare and the public interest. More specifically, governors are required to introduce arrangements to protect young women from significant harm adapted from those required by the Children Act. Guidance for preventing abuse of trust is also set out in “Caring for young people and the vulnerable” (Home Office 1999).”

“The Secretary of State’s power, and therefore that of his designated officers, to depart from the provision for allocation to a young offender institution is limited to permission “from time to time [to] direct that an offender … shall be detained in a prison or remand centre … for a temporary purpose” if under 18. The phraseology makes it plain that Parliament was authorising the Secretary of State on occasion to place a particular offender under the age of 18 temporarily in a prison or remand centre. It did not authorise him to make it a general practice to do so; it did not authorise him to give such a direction in relation to offenders generally; and it did not authorise him to keep them in a prison or remand centre for however long it takes (possibly the whole length of the sentence) to make a lawful placement in a young offender institution. The practice not only permitted by enjoined by the combination of circular instruction 2/91 with its annexures and the total non-availability of any young offender institution to which newly sentenced female young offenders may be sent is in our judgment a violation of the principle contained in section 1C(1) of the Criminal Justice Act 1982, as amended, and an excess of the powers contained in subsection (2) of the enactment. We recognise the problems which this conclusion creates for the Prison Service. But it has to be recognised, too, that the very change which the amendment [in 1988] of the Act of 1982 brought about was spelt out in the 1988 letter, which then went on to lay down a regime which meant that there would in practice be no change. This is not easy to comprehend when one bears in mind that the same department of state will have promoted the amending legislation. Mr Wise was also justified in putting before us the United Nations Convention on the Rights of the Child (1989) (Cm. 1976), ratified by this country in 1992 with the following reservation.”

“It is apparent that careful consideration had been given to the purposes of section 1C – and we respectfully agree with the government’s view of those purposes – and a reservation made in favour of them. For this reason, too, it is disturbing to see that as long ago as 1988 a regime had been in place within the prison system which made it inevitable that those purposes would be exceeded.”

“The warrant of commitment directs that the offender is to be received into prison and the court draws the warrant in those terms because, and only because, the policy of the Secretary of State is to send all female young offenders sentenced to detention in a young offender institution first to a prison. It is the policy that dictates the warrant and not the warrant that dictates the policy. In those circumstances, there cannot properly be said to be a discrete decision made about each young female offender. This is blanket policy; it is contrary to section 1C(2) of the Criminal Justice Act 1982 and it is accordingly unlawful.”

‘The government has concluded that establishing distinct units for the very small number of 15-17 year old girls held in the prison service accommodation is not the best way forward or in their best interests.’

‘The Home Secretary announced that from April 2000, 15 and 16 year old girls will be placed in local authority care, not in prison. In the longer term sentenced young women aged 17 will also be placed outside Prison Service custody.’

“44. … [T]he government considers (and most commentators on penal policy agree) that it is strongly desirable for juveniles to be detained in an environment where they have day-to-day contact with other juveniles of similar age. Children of 15 and 16 are still developing, and need to acquire social skills and experience of interacting with their peers. Thus, it is desirable for them to be held together in groups, rather than dispersed in isolation from others of their own age. These points have important ramifications for the allocation of boys and girls between the various types of secure accommodation. In view of the different patterns of offending behaviour, there are too few female detainees of 15 and 16 (the number is too low even if one takes account of 17-years olds) to allow a network of female Juvenile YOIs to be developed, unlike the position in relation to male juveniles. Further, as explained at paragraph 19 above, it would be undesirable to put all female juveniles together in just 1 or 2 establishments. This is an important reason why, as noted above, female juvenile detainees will normally be placed in LASCHs. It is, however, still necessary to have an understanding of the operation of the male juvenile estate, since the provision for females who are placed in Prison Service accommodation seeks to replicate this, to the extent that this is possible given the much smaller numbers. … MIXING OF JUVENILE FEMALES 49. Traditionally the most usual reason for the placement of female detainees in Prison Service accommodation has been the operational reason that there simply has not been a sufficient number of places available in LASCHs. As a consequence less vulnerable normally older, juveniles have had to be transferred tin order to free up spaces in LASCHs for those considered to be more vulnerable generally, but not exclusively, younger girls. As a result of the continuing investment referred to above, this is no longer a factor in the placement decision for younger juvenile girls where alternative opportunities now exist, in particular and increasingly in STCs. As a consequence, there has been no operational need to place 15-year old girls in Prison service accommodation since 21 November 2002, when a 15-year old girl was placed overnight in Prison Service accommodation but moved the following day to a LASCH and it is anticipated that this will be extended to 16-year old girls by the end of this year [2003]. Indeed, the YJB made a public commitment on 17 February 2003 to achieve this aim … This is in accordance with long-standing government policy … even though there has been some slippage by reason of the act that it has taken longer than anticipated to provide new secure accommodation and there have been unforeseen increases in demand by reason of, for example, street crimes and secure remands initiatives in 2002. Assuming that the target for16-year olds is met, that will just leave 17-year old female juveniles in Prison Service accommodation, and therefore in a position where they may mix with young offenders aged 18-21. … 50. It may still be necessary to place 15 and 16 year-olds in Prison Service accommodation if there are unexpected surges in demand, which means that the LASCH and/or the STC estate cannot cope with demand. This may happen where there is a legislative or policy change that results in an increase in the number of juveniles being sent to secure detention. If such an increase in requirement for places proves to be long-term, then new provision can be made, although this will inevitably take time given the need to allocate public funds and/or negotiate arrangements with private sector providers. The building, and in particular the planning, process also adds to the time required. In the circumstances, it will remain necessary to use prison Service accommodation selectively to manage peaks in demand for the foreseeable future. This process of management, which is a necessarily continuous process involving close liaison between the YJB and the Prison Service who between them share placement responsibility for juveniles, is described in more details in the statements of Peter Minchin and Ronald le Marèchal respectively. 51. Whilst, therefore, it will become increasingly rare for 15 and 16-year-old females to be placed in Prison service accommodation, 17-year old detainees will for the time being continue to be placed in the 4 designated female YOIs offering the enhanced regime described above where there will be mixing with young offenders. This policy can be justified for a number of reasons: (a) It may be in the interests of older juvenile detainees to associate with 18 to 21 year olds under careful supervision as opposed to the younger children, some aged only 10 and commonly aged 12 and 13, detained in LASCHs. This is especially so where there is evidence that the juvenile in question has a propensity to bully younger children. It may even be inappropriate to mix such juveniles with the 14 year olds who are detained in STCs. (b) In this respect it should be noted that rigid separation of under and over 18s is not necessarily in the interests of a juvenile detainee. It is necessarily in the interests of a child in a juvenile establishment that he or she must be transferred on his or her 18th birthday even if he or she has a relatively short period of time left to serve? Where that individual has formed a positive and supportive relationship with a slightly younger detainee, is it in the interests of either detainee that there should be automatic separation on an arbitrary date? Allowance has to be made for the different rates at which individual detainees mature. (c ) The existence of discrete provision for 18 to 21 year olds does not seem to have been taken into account by those advocating the separation of older children from adults. In particular the ICCPR and the UNCRC make no allowance for the fact that if juvenile detainees are mixed with adults this will almost exclusively be with young offenders of age 18 to 21 and not with the adult prison population generally (see further the statement of Timothy Beeston). (d) As noted above, it is often necessary to have a critical mass to provide appropriate secure training opportunities. This is more of an issue with vocational qualifications. By way of example, in the case of female juveniles hairdressing is a popular vocational course but in order to provide this the establishment obviously needs to be able to provide salon facilities, as it would be inconsistent with the secure nature of the detention for the detainee to be allowed to attend a college or other external training provider. Whilst such provision is possible within adult prisons, and is consequently available to those detained in the YOI wings, it is not cost-effective or practical to provide similar facilities within the much smaller and more limited confines of LASCHs. (e) In a small number of cases the juvenile may be so difficult to control that it is simply not possible to detain the individual within a LASCH or STC, and for the safety of the individual, and others, more secure prison Service accommodation is required. (f) A limited amount of mixing of older juveniles with young offenders may assist with the social cohesion of what otherwise could be painfully small juvenile group. In particular, it provides a useful means of preventing the formation of small cliques of juveniles within female YOI units. This is a useful tool for managing the risk of bullying. This is in the interests not only of those who might be bullied but also of those juveniles who might be tempted to bully others. (g) The juvenile, or his or her parents or guardian, may request a transfer to the YOI wing of an adult prison. This may be for any of the reasons referred to above or alternatively because of the geographical location of the YOI, which may be more convenient than alternative accommodation, even if that is within a LASCH or STC. (h) While there are mother and baby units in Prison service establishments that are able to accommodate pregnant juvenile detainees, there is no equivalent accommodation in LASCHs and STCs.”

“Care must be taken to ensure that appropriate and ongoing vulnerability assessments are undertaken before mixing with adult prisoners is authorised, as part of the effective implementation of child protection arrangements. The Prison Service should ensure that the care and protection required by the Children Act 1989 is enforced for girls under 18 years of age.”

“17.1 Prison is essentially an adult institution with a punitive culture and is not in a position to provide a suitable and child centred therapeutic environment. 17.2 Many of the girls are vulnerable and damaged. HM Inspectorate of Prisons carried out unannounced inspection of HMPYOI Eastwood Park in October 2001 (extracts attached in exhibit FC3) and noted in relation to 15 – 17 year old girls that; ‘It was impossible not to be struck by the profound personality disturbance and mental health problems that many presented and by the inappropriateness of prison, or indeed any other custodial placement for them.’ 17.3 Girls in prison will only make up a minute fraction of the total prison population and therefore could be dealt with more appropriately; 17.4 There is a lack of specialist training, education and supervision when working with girls in prison; 17.5 Child protection procedures are not uniformly in place throughout the prison service placing children at risk of bullying and self-harm. 18. It is clearly a matter for parliament whether children are placed in prison. The children that are placed in prison are per Munby J: [R. on the application of Howard League for Penal Reform v. The Secretary of State for the Home Department] “…on any view, vulnerable and needy children. Disproportionately they come from chaotic backgrounds. Many have suffered abuse or neglect.”

“It is deeply concerning that the government should on the one hand make commitments and policies that children will be diverted away from prison system and be kept separate from adults; and on the other hand when one examines the practice to see that the reality is that children are mixing and living with adults in the prison estate. It is extremely frustrating that we cannot rely upon the promises, commitments and aspirations of ministers, in particular following the case of Flood. It is a matter of deep regret that in the six years since that important case we have returned to the same issue and that the Secretary of State is not able to comply with prison service orders or the minimum standards set out in United Nations Convention on the Rights of the Child.”

“This being so, as long as those policies are policies which he can legitimately have, it cannot be said that by entering into the Convention, the executive has created a legitimate expectation which is in conflict with those policies.”

“Girls below the age of 18 and boys below the age of 15, will, as a general rule, continue to be placed outside the Prison Service Estate, either in local authority secure units or secure training centres” (underlining added). In my view this is not an accurate description of what was happening at the time to females aged 15 and over having regard to the figures for the period (paragraph 48 above) and even allowing for the April 2002 “bulge”

“Because a custodial sentence, or a secure remand, constitutes such a serious infringement of the right recognised by article 8 (1), Parliament has set a high hurdle to be crossed before courts can lawfully make an order of this kind.”