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On the 28th July the Court of Appeal held that the rules currently in force allowing children in custody to be restrained for reasons of “good order and discipline” are unlawful and must be quashed. The challenge was made in relation to amendments to the Secure Training Centre Rules that were brought into force in July 2007.
As you may be aware we, NFPS Ltd, wrote to the House of Lords and House of Commons Joint Committee on Human Rights over this issue and out letter was published as written evidence in their Eleventh Report of Session 2007-08 on the Use of Restraint in Secure Training Centres, which we highlighted in our April e-mail newsletter this year.
The concern about the Rules stemmed partly from the deaths of Gareth Myatt - who died whilst being restrained by staff at Rainsbrook STC - and Adam Rickwood - who hanged himself in Hassockfield STC - after having been restrained. (You can read about these cases in our book ‘Understanding Unreasonable Force). These cases raised concern about the legality of the use of force in STCs and resulted in the amendments being made back in July 2007. There was widespread concern at the time that the amendments were brought in to greatly widen the circumstances in which children could be restrained, and to legalise conduct by officers which up to that date had been prohibited.
In a decision made earlier this year the Administrative Court found that the amendment that were introduced were unlawful due to the failure to properly consult and to carry out a race equality assessment. And on the 28th July the Court of Appeal confirmed that the Rules should be quashed, not only due to the failure to consult but also because the changes breached articles 3 and 8 of the European Convention on Human Rights.
In a test case funded by the Legal Services Commission (LSC) it was submitted on behalf of the claimant – a child who had been held in a STC – that the rules had been introduced without proper consultation, without conducting a race equality impact assessment, and that they breached articles 3 & 8 of the European Convention on Human Rights2.
In a highly critical judgment given on behalf of the Court, Lord Justice Buxton stated that Secretary of State had “surprisingly” not appreciated that the Rules did change the policy concerning the use of restraint quite significantly. This in turn led to a series of failings in relation to the appropriate consultations that should have taken place. He paints a picture of a youth custody system that is inconsistent and incoherent, with worrying difference of opinion between key players:
“...there is a history in the life of STCs of disobedience to legal and contractual requirements. We have seen how the Amendment Rules were introduced to legitimate practices that up to then were illegal and in breach of the operators’ contracts. And Hassockfield STC is run by, and the Secretary of State relies on the evidence of, a man who before the Rickwood inquest, and in these proceedings, sought, apparently unchecked by the Secretary of State, to argue that his contractual obligations were not binding.”
The finding that the Rule authorising the use of force breached Article 3 of The European Convention on Human Rights flowed directly from the chaotic administration identified by the judge.
John Wadham, the EHRC's group director, legal, said:
"The tragic cases of Adam and Gareth show the grave risks the use of restraint techniques bring. It is time for these rules to be changed and the Court of Appeal agrees.
"As the case reveals, the Ministry of Justice has failed young people on two counts. It has allowed staff at secure centres to use unlawful force - in violation of one of our most fundamental rights - and failed to consider the effect of these new rules on young people from ethnic minorities.
Restraint should only be used as a last resort in cases where the young person might do harm to themselves or others - it is never to be used a way of ensuring young people in custody behave. Using pain as a means of creating order and discipline is entirely unacceptable.
The Ministry of Justice attempted to change the rules to fit the circumstances, rather than assess the needs of the young people in their care.”
Mark Scott, a partner at Bhatt Murphy Solicitors, acted for the child who brought the challenge as well as the families of Gareth Myatt and Adam Rickwood. He commented:
“The Court has identified very clearly the dangers posed by the use of physical force to restrain children and the judgment is extremely critical of how the authorities have responded to this problem. It is difficult to understand how such a haphazard approach can be taken to the use of potentially lethal force against young people in the care of the state. Whilst my client is extremely pleased with the decision in his case, it is tragic that children have already died during or following the use of restraint in STCs.”
Deborah Coles, Co-Director of INQUEST, said:
“This judgment is further condemnation of the failure of the state and privately-run companies to protect vulnerable children in the custody and care of the state, the result of which has been death, injury and psychological damage. We have heard nothing since the deaths of Adam Rickwood and Gareth Myatt that has convinced us that those with responsibility have properly heeded what has been exposed and that necessary and appropriate changes have or will now be made to safeguard children.
Instead what has emerged is complacency and a reliance on a restraint review conducted behind closed doors that the government has refused to disclose in advance of its response, thus preventing consultation and debate; the very things criticised by this judgment.”
Our NFPS Restraint & Breakaway Instructors Qualifying Course covers all of the legal aspects in relation to the use of force with children and young people. If you would like to become an Approved and Accredited Instructor with us – click here. |
