D.3: Children in custody
12. The number of children and young people in custody in young offender institutions (YOIs), secure training centres (STCs) and secure children’s homes (SCHs) has declined from a monthly average of more than 3,000 in 2003 to 560 in 2021.[1] Those children in custody are extremely vulnerable to abuse, particularly as they include a high proportion of “highly complex, high-needs young people”.[2]
13. Some children come from unstable family backgrounds, some have experienced sexual abuse prior to being in custody.[3] Many have emotional, behavioural or educational problems. Some children have mental health difficulties which might manifest as extreme violence, sexualised behaviours or self-harming behaviours.[4] An HM Inspectorate of Prisons report covering the period from 2019 to 2020 recorded that over one-third (36 percent) of children said that they had health problems (including mental health problems) and a quarter (25 percent) reported having a disability.[5] Both the 2018/19 and the 2019/20 HM Inspectorate of Prisons reports on children in custody indicated that more than half of children had been in the care of a local authority.[6] HM Inspectorate of Probation’s 2021 annual inspection report recognised that children looked after by local authorities form a significant proportion of children in custody, and that they are a particularly vulnerable group.[7]
14. This combination of challenging behaviour and vulnerability often presents difficulties in safely managing and caring for these children and young people, some of whom may be violent to staff and other children. As a result, there are occasions when staff in custodial institutions consider it necessary to physically restrain children.
The use of restraint
15. The 2012 Minimising and Managing Physical Restraint (MMPR) guidance for YOIs refers to a range of physical restraint techniques.
15.1. The guidance states that the use of force to restrain a child is permitted as “the last available option” when other methods not involving force have failed or are judged unlikely to succeed but action is required “to prevent injury or serious damage” to the child, another person or property.[8] These restraint techniques are not intended to induce pain, although it may be a consequence of some, and so the MMPR guidance sets out when adjustments should be made in response to a child complaining of pain.
15.2. There are also three techniques which are deliberately designed to cause pain to the child – a mandibular angle technique (applying pressure directly under the ear lobe in the crease between the jaw and the neck), thumb flexion and wrist flexion (often misdescribed as ‘pain-inducing’ techniques or restraint, but also referred to as ‘pain distraction’ or ‘pain compliance’).[9] The intention is that the infliction of brief, sharp pain will cause a child to desist and comply with instructions. The MMPR guidance states that use of these techniques may be “justifiable” in the case of “immediate risk of serious physical harm”.[10]
16. The deliberate infliction of pain is a form of child abuse and is likely to contribute to a culture of violence as well as to an environment where sexual abuse may be more likely to occur and also less likely to be reported if it does occur.[11] As a result, in its Sexual Abuse of Children in Custodial Institutions: 2009–2017 Investigation Report (published in February 2019), the Inquiry recommended that the government should prohibit these practices.[12]
17. A similar conclusion was reached by Parliament’s Joint Committee on Human Rights in April 2019, which stated that:
“The deliberate infliction of pain in Young Offenders’ Institutions (YOIs) is unacceptable under any circumstances under rights legislation. The use of restraint for maintaining ‘good order and discipline’ must be prohibited in all but the most exceptional of circumstances.”[13]
18. In July 2019, in response to the Inquiry’s recommendation and a legal challenge by the children’s rights group Article 39, the Ministry of Justice commissioned Mr Charlie Taylor (Chair of the Youth Justice Board) to review the use of pain-inducing techniques in the youth secure estate. The Taylor Review, published in June 2020, made 15 recommendations. The review acknowledged that “even in the most humane, well-run setting there will be occasions when direct, immediate physical force is required”, and recommended that the MMPR syllabus be amended to remove the use of pain-inducing techniques.[14] It recommended separately that in situations where “there is a risk of serious harm to [staff] or others”, staff may “use a pain-inducing technique to prevent serious physical harm to child or adult”, although it stated that this should not form part of the MMPR syllabus because it should never be routine or normal.[15]
19. The government’s response, published alongside the Taylor Review, stated that it would revise approved training modules so that “the sections on pain-inducing techniques are removed and the syllabus is comprised only of behaviour management and restraint techniques”.[16] In December 2020, the Youth Custody Service established the Independent Restraint Review Panel to consider incidents when pain-inducing techniques have been used in YOIs and STCs.[17]
20. In the year ending March 2020, prior to the COVID-19 pandemic, there were nearly 7,800 use of force incidents (which include legitimate incidents of restraint but also techniques that deliberately inflict pain) in YOIs and STCs, of which 49 percent lasted for three minutes or more.[18] Use of force incidents reduced to almost 4,500 for the year ending March 2021, with 47 percent lasting for three minutes or more, although the Youth Justice Board itself noted that this should be viewed in the context of restrictions related to COVID-19, as a result of which “occasions on which incidents of restrictive physical intervention may have been needed were also reduced”.[19] A review of, or reduction in, the use of techniques that deliberately cause pain to children is not an alternative to prohibition.
21. As set out in Table D.1, there remain a number of incidents in which a pain-inducing technique was used (and a higher number of times such a technique was used, as a technique might be used more than once during an incident). As noted above, incidents in 2021 were reduced as a result of restrictions related to COVID-19.
Table D.1: Number of times a pain-inducing technique was used, and total number of use of force incidents in which a pain-inducing technique was used, in young offender institutions (YOIs) and secure training centres (STCs) in England and in Wales
| Year ending March | Number of use of force incidents in which a pain-inducing technique was used | Total number of times a pain-inducing technique was used |
|---|---|---|
| 2017 | 119 | 195 |
| 2018 | 181 | 260 |
| 2019 | 168 | 251 |
| 2020 | 110 | 136 |
| 2021 | 45 | 54 |
Source: See data compendium to this report
Figure D.1: Average monthly rate of use of force incidents per 100 children and young adults in the youth secure estate and per children or young adults involved, secure training centres (STCs) and young offender institutions (YOIs) only, in England and in Wales
Source: Youth Justice Statistics 2020/21, figure 8.9
Long Description
2016
2017
2018
2019
2020
2021
Incidents per 100 children and young
adults
40.4
55.1
63.4
70.3
82.5
63.2
Incidents per child or young adult
involved
1.49
1.73
1.79
1.86
1.92
1.76
22. The use of force against children contributes to a belief that an institution condones violence, which is likely to discourage reporting of sexual (and indeed other) abuse. Any review of the relevant guidance and related techniques should concentrate on restraint that does not inflict pain of any kind.
23. A review of or reduction in the use of techniques that deliberately cause pain to children is not an alternative to prohibition of what is a form of child abuse. The Inquiry therefore reiterates its previous recommendation regarding the prohibition of these practices.
Recommendation 5: Pain compliance
The Inquiry recommends (as originally stated in its Sexual Abuse of Children in Custodial Institutions: 2009–2017 Investigation Report, dated February 2019) that the UK government prohibits the use of any technique that deliberately induces pain (previously referred to by the Inquiry as ‘pain compliance techniques’) by withdrawing all policy permitting its use in custodial institutions in which children are detained, and setting out that this practice is prohibited by way of regulation.
24. The Inquiry also noted the high rates of use of force incidents for the year ending March 2021 for children aged 10 to 14 (an average monthly rate of 147.7 per 100 children compared with 62.6 for those aged 15 to 18) and for girls (229.8 per 100 girls compared with 59.9 for boys).[20] Both groups of children are likely to be more vulnerable to abuse due to a physical as well as a power imbalance, which the Inquiry has frequently observed as contributing to opportunities for sexual abuse.
Respecting the interests of children in custody
25. Children in custody are not able to engage with the outside world in the same way as their peers. They have very little control over their lives and limited lines of communication.
26. The institutions in which children are detained should ensure that there is a child-centred focus, where children have access to their family, friends, peers or a trusted adult.[21] Secure children’s homes have better staff ratios and training requirements than young offender institutions or secure training centres, and are also subject to similar standards of care to those applied by Ofsted to children’s homes. As set out in the Sexual Abuse of Children in Custodial Institutions Investigation Report (published in February 2019), the needs of children in custody would be better served by the Ministry of Justice and the Department for Education sharing policy responsibility for managing and safeguarding children in custodial institutions to ensure a focus on securing child welfare as well as discipline. In July 2019, the Ministry of Justice rejected this recommendation, noting that the government intended to “replace all YOIs and STCs with secure schools, moving the estate towards one which consists of SCHs and secure schools only”.[22] It was expected that this would commence by 2022. The government now expects one secure school to open in late 2023.[23] The Inquiry understands that the Ministry of Justice will have overall policy responsibility for safeguarding children in secure schools, and that this policy is aligned wherever possible with that of the Department for Education.
27. The Inquiry also recommended (in its February 2019 Sexual Abuse of Children in Custodial Institutions Investigation Report) that the Ministry of Justice revise and publish updated guidance on the response by custodial institutions to allegations of child sexual abuse (Prison Service Instruction 08/2012).[24] This recommendation has also not been implemented. In its response in July 2019, the Ministry of Justice indicated that work had begun to revise or replace Prison Service Instructions (PSIs) with ‘policy frameworks’ and that the Youth Custody Service would work with the Department for Education to produce guidance called ‘Keeping Children Safe in Custody’. The Inquiry understands that neither of these changes have been made in the intervening three years. Given PSI 08/2012 has expired, it is of concern that there is no up-to-date guidance for custodial institutions about how to maintain ‘a safe and secure environment’ for children in their care. New guidance, ‘Keeping Children Safe in Secure Settings’, is due to be published by the Youth Custody Service in early 2023.