Response to the Youth Justice Agency’s Draft Child Protection Policy and Procedures

Children’s Law Centre
January 2005

Introduction

The Children’s Law Centre is an independent charitable organisation established in September 1997 which works towards a society where all children can participate, are valued, their rights respected and guaranteed without discrimination and every child can achieve their full potential.
We offer training and research on children’s rights, we make submissions on law, policy and practice affecting children and young people and we run an advice/information/representation service. We have a dedicated free phone advice line for children and young people called CHALKY and a youth advisory group called Youth @ clc.
Our organisation is founded on the principles enshrined in The United Nations Convention on the Rights of the Child, in particular:
• Children shall not be discriminated against and shall have equal access to protection.
• All decisions taken which affect children’s lives should be taken in the child’s best interests.
• Children have the right to have their voices heard in all matters concerning them.
The Children’s Law Centre welcomes the opportunity to comment on the Youth Justice Agency’s Draft Child Protection Policy and Procedures.
General Comments – The Consultation Process
We have a number of general concerns in terms of the consultation process which we feel we must raise. In our letter to you regarding the Youth Justice Agency’s (the Agency) Draft Child Protection Policy and Procedures consultation dated 07/01/05, we raised a number of questions and concerns. We highlighted our concern at the reduced consultation period of six weeks, which fell over the Christmas period, when many organisations, including the Children’s Law Centre, were closed. We asked in our letter if you intended to extend the period for consultation and asked for details of how the Agency carried out direct consultation with children and young people on the Draft Child Protection Policy and Procedures. We also requested copies of the child accessible version of the consultation document to enable us to consult with children and young people in framing our response, as well as details about the initial screening process. We received your reply to this letter, dated 21/01/05 and feel that some of these issues have been inadequately addressed in terms of the Agency’s section 75 statutory duty.
It is our intention to provide constructive comment and inform this consultation process, however, it is with concern that we must raise questions around good practice and meaningful consultation in light of the progression of the process to date. We would be happy to meet with staff representatives from the Agency to discuss the fulfilment of the Agency’s section 75 statutory duty in future consultation processes.
Although we requested this information in our letter to the Agency, we would be grateful if you could inform us about whether and how consultation was carried out directly with children and young people on the new Child Protection Policy and Procedures. This is particularly important in compliance with Article 12 of the UNCRC, one of the principles of the Convention - Respect for the views of the Child. In examining the government’s breach of Article 12, the UNCRC Committee recommended that the government, “...take further steps to promote, facilitate and monitor systematic, meaningful and effective participation of all groups of children in society”. It is vital that the Agency, in its commitment to protecting the rights and needs of children is seen as engaging in new and more effective models of participation. We would be grateful if the Agency would respond with details of how they have consulted directly with children and young people and how extensively this process was carried out.

We also would appreciate it if the Agency would respond with details of the system which they intend to use to analyse responses to this consultation process in terms of the degree of weight which will be attributed them, in particular the responses made by children and young people. This is a vital element to drawing conclusions from responses and progressing with identified areas for action or otherwise. For this reason, we would appreciate information both on the system itself and on its operation for the purposes of analysis.
We note that the Agency is of the view that the Draft Child Protection Policy and Procedures if implemented will have no adverse differential impact on any of the nine categories detailed in section 75 of the Northern Ireland Act 1998. We believe that there are clear issues in relation to the Agency’s Draft Child Protection Policy and Procedures and the possible differential impact on vulnerable groups such as young people, those with a disability, ethnic minorities, males and females, those with dependents and on grounds of a young person’s sexual orientation, cultural and/or religious beliefs. For these reasons, we feel that the Draft Child Protection Policy and Procedures should be screened in for the purposes of carrying out a full Equality Impact Assessment and consulted on accordingly.
The Children’s Law Centre appreciates the opportunity to comment on the Draft Child Protection Policy and Procedures and sees it as a very welcome development. We have a number of comments in relation to specific areas of the consultation document and will address these below.
International Standards
International human rights standards give children an absolute right of protection from harm. Article 19 of the United Nations Convention on the Rights of the Child states,
“1. States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.
2. Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.”
This gives children an absolute right to protection from all forms of ill-treatment, torture, neglect and physical, emotional and sexual abuse and as a principle, is linked to the right to life and to maximum survival and development guaranteed under Article 6. This is compounded by Article 3 of the European Convention on Human Rights,
“3. No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
Article 37 of the UNCRC also states that every child deprived of liberty shall have the right to prompt access to legal and other appropriate assistance. The UNCRC Committee has also strongly promoted The UN Rules for the Protection of Juveniles Deprived of their Liberty 1990 (UN Rules) as a means for implementation of Article 37, most of which are very relevant to this discussion.
Article 40 of the UNCRC deals with the administration of juvenile justice. It states that a child in conflict with the law has the right to treatment which promotes the child’s sense of dignity and worth, takes the child’s age into account and aims at reintegration into society. The child is entitled to basic guarantees and appropriate legal or other assistance.
Rule 1, one of the fundamental principles, of the UN Rules also provides that the youth justice system should uphold the rights and safety, and promote the physical and mental well-being of children. Rule 5 of the UN Standard Minimum Rules for the Administration of Juvenile Justice 1990 (the Beijing Rules), outlines the aims of the youth justice system, the first objective being the promotion of the well-being of the child or young person. Accordingly, children in the youth justice system must be protected from ill treatment by staff and other young people, as stated at 87 a) and d) of the UN Rules,
“87. In the performance of their duties, personnel of detention facilities should respect and protect the human dignity and fundamental human rights of all juveniles, in particular, as follows:
(a) No member of the detention facility or institutional personnel may inflict, instigate or tolerate any act of torture or any form of harsh, cruel, inhuman or degrading treatment, punishment, correction or discipline under any pretext or circumstance whatsoever…
(d) All personnel should ensure the full protection of the physical and mental health of juveniles, including protection from physical, sexual and emotional abuse and exploitation, and should take immediate action to secure medical attention whenever required...”
These relevant provisions detail the protections which all children and more specifically, with regard to this debate, children in the youth justice system, are entitled to be afforded. In light of these very persuasive international standards and the fact that it has been acknowledged that the current child protection procedures in the youth justice system are out of date (In Our Care: Northern Ireland Human Rights Commission March 2002), the implementation of revised a child protection policy and procedures is an overdue but very welcome development.
In Our Care
The “In Our Care” report clearly illustrated some of the NIHRC’s main concerns regarding child protection. These were the lack of independent scrutiny of the system; the absence of support systems for a child who had made the complaint or for child witnesses and the failure of the police and social services to properly operate the Joint Protocol. These are dealt with to some extent in the Draft Policy and Procedures, but we have a number of remaining concerns.
Introduction
We welcome the fact that the Agency states that the child’s welfare is the overriding consideration in carrying out investigations, however, we believe that the overriding consideration should be the more rights based concept of the child’s best interests, which is in compliance with international child’s rights standards. We are pleased to note that the police will always consider the views expressed by other parties about what is in the child’s best interests (para 1.6). While it may be implicit, we would ask that the Agency clearly states that they will consider the views expressed by the child about what is in her/his best interests. This is fundamental in complying with three of the principles of the UNCRC, namely, Articles 2 – Non-discrimination, 3 – The best interests of the child and 12 – Respect for the views of the child.
Child Protection Policy and Statement
We commend the Agency for its reference to and acceptance of the UNCRC (para.2.2) and, “…the conventions and regulations that underpin the protection of children.”
We are pleased to note the fact that the Agency accepts the obligations placed on it by the UNCRC and other international standards to ensure the protection and safeguarding of the rights of the child within all aspects of the youth justice system. We wish to see more government departments and public bodies mainstreaming the UNCRC in terms of policy, strategic and legislative developments.
We also note that the Agency draws on the DHSSPS Guidance when referring to children in custody which states that, “Children are held in custody in prisons and juvenile justice centres.” We believe, in line with the recommendations of the UNCRC Committee, that children should not be held in prison with adults. We hope that the legislators and the judiciary Prison Service will take cognisance of both the issues raised in this consultation and in the response comments. During the NIHRC’s research on women in prison, leading to the publication of “The Hurt Inside” (Northern Ireland Human Rights Commission October 2004) researchers discovered that there was no child protection policy available at Maghaberry Prison despite girls aged under eighteen being held there. We have also tried to ascertain whether there is a child protection policy in Hydebank Wood and have been unsuccessful. While we assume that a child protection policy and procedures exist in Hydebank, in light of the detention of girls, there is clearly a need to carry out training in relation to gender specific child protection issues. We urge the Agency to use its influence to encourage legislators to outlaw the detention of children in prison custody and in the interim, to work towards changing policy and practice and encouraging regular and comprehensive training and awareness raising.

The Agency states that it intends to maintain its procedures consistent with those issued by Area Child Protection Committees (ACPCs) and by agreement, the Agency will in addition report annually to the ACPC of the Eastern Health and Social Services Agency and questions whether the same arrangement should be established with each ACPC. (para 2.8) In response, we are of the view that it would be useful to establish an arrangement with each ACPC, particularly with regard to monitoring so that they can be aware of allegations or investigations relating to children from their area.
General Principles
The Agency’s general principles, as detailed in section 3 of the consultation document are very welcome and closely relate to many of the provisions of the UNCRC, Article 2 – Non-discrimination, Article 3 – the best interests of the child, Article 12 – respect for the views of the child and Article 37a – right not to be subjected to torture or other cruel, inhuman or degrading treatment or punishment. We wish to highlight the importance of the concept of understanding the process and procedures in relation to child protection on behalf of the child in order to assert her/his rights. While we recognise the Agency’s commitment to educating and inducting children in an effort to ensure they understand what constitutes appropriate and inappropriate physical contact and how to develop protection strategies in abusive situations (para 1.8) and implementing prevention and awareness strategies for children (section 9), we wish to emphasise the importance of ensuring that these systems are comprehensive and implemented for all children and young people in the youth justice system.
The Agency recognises that children in the youth justice system are particularly vulnerable when in custody (para 1.3) and states that they may be vulnerable to abuse, stating that as well as physical abuse, in institutions accommodating children and adolescents there are likely to be incidents of sexual abuse or conflict between the residents on occasions. (para 4.9) We cannot over-emphasise the need for the Agency to ensure that children and young people are fully aware of their rights and the protections to which they are entitled, how to assert these rights and protections and the procedures which exist to deal with an infringement and how to invoke them, including the provision of independent advocates for the rights of the child. The courts have taken a firm view on both the participation and understanding of children and young people in custody. In the case of T & V v UK (1999) the court ruled that in order for children and young people to have a fair hearing in criminal cases they must be able to participate in and understand the proceedings in which they are involved. In this case, the lawyers for the child defendants successfully argued that the mode of trial breached their article 6 rights. It is suggested from recent case law from the European Court of Human Rights that the twin concepts of understanding and participation as essential factors in the guarantee of a fair hearing for children should be read across into all judicial and administrative proceedings relating to children and young people.
Definitions of Child Abuse
At para 4.10, the Agency refers to the “duty of care” which staff are under in relation to being alert to age peer friendships which could proceed to a sexual relationship, which is not permitted in a custody setting. It is also stated that staff in other settings should assess if there is an abuse of power which could be a matter for regret or recrimination. The question of whether this is being too prescriptive is posed. It is important to note that young people have a right to respect for their private lives under Article 8 of the European Convention on Human Rights, as implemented by the Human Rights Act 1998. While it is inevitable that friendships between young people of different sexes and homosexual friendships will arise in both custody and care settings, young people in custody have the right to private life just as young people in a care setting do. The Agency should check this section against Youth Justice Centre policies on relationships between young people to ensure compatibility. This section requires further clarification as at present it is unclear whether young people in custody are being prohibited from having certain types of friendships.
Procedures for Reporting Suspected Abuse
While we welcome the appointment of a Co-ordinator for Child Protection and a Designated Officer for each Unit/Project, the roles and responsibilities of Co-ordinators and Designated Officers are quite complex and detailed. We wish to emphasise the need for ongoing and regular training in order to fully and effectively undertake these roles and also to clarify any areas of inter-working and demarcation of roles. The need for this is emphasised in the consultation document in that it is stated that part of the role of the Co-ordinator to ensure that the appropriate Director and Chief Executive are kept fully informed on all matters arising from the application of these procedures (para 6.5). It is also stated that part of the role of the Designated Officer is to inform the Co-ordinator and Director of causes for concern. Perhaps this area just requires greater clarity, but it would appear that both the Co-ordinator and Designated Officer are being tasked with the responsibility of informing the Director of issues/concerns. If this is the case, there is clearly an overlap in terms of responsibility and if roles are confused within the draft procedures, they are much more likely to be confused in practice. It is fundamental that all members of staff are properly trained and aware of their individual roles and responsibilities.
Children and young people in the youth justice system are likely to feel very vulnerable, especially those who are invoking the child protection procedures. We note at 6.3 that the Agency outlines ways to support them, including encouraging them to have a friend or relative present during the interview stage. It is vital that this support is encouraged at all stages of the investigation in order to make the young person feel as at ease as possible. While we understand that the Agency may be reluctant to introduce further legal elements into the process, the young person should be made aware that they are entitled to ask for and obtain the support of their legal representative or an independent advocate. Children in the youth justice system may wish to involve their solicitor, especially in cases of a very serious nature and /or those which require legal representation. We feel that it should be explicit in the child protection procedures that young people have the right to contact their legal representatives for support in invoking the child protection procedures so that they are aware of their rights from the outset.
We also wish to address the possible situation where a young person who wishes to exercise the right to bring someone along for support cannot for one reason or another. It may be that none of the young person’s friends or guardians can commit to involvement or that the issue is of a sensitive nature and the young person does not wish to involve anyone he or she already knows. In these cases, young people should be made aware of external organisations that can provide representatives to support them in making a complaint. The Agency should collate information in relation to which agencies can commit to this level of service provision and include this in the child protection procedures and information provided to young people on entering the youth justice system so that they are fully aware of the support available to them should a matter of child protection arise.
In the draft procedures, at para 6.5, reference is made to the operation of the Joint Protocol for Investigation of Child Abuse by Police and Social Services (the Joint Protocol). The Agency asks whether it is necessary to provide a copy of the Joint Protocol as an Appendix to the document. We believe that there is merit in providing the Joint Protocol as an Appendix and also translating it into a child accessible format, for the purposes of ease of access, transparency, awareness raising and consistency.
A key concern of the NICHR “In Our Care” report was the failure of police and social services to effectively operate the Joint Protocol. The report found that all complaints of abuse were referred directly by Youth Justice Centre management to the police CARE Unit which, in turn, referred them to uniformed officers. Social services were not directly involved in the investigation of allegations. We welcome the focus on the role of the partners in the Joint Protocol in investigating allegations of abuse in the draft policy and procedures. While this is the intended position at present, it clearly is not operating effectively. In order to ensure the efficient operation of the Joint Protocol, it is vital that the revised Policy and Procedures on Child Protection are effectively implemented and that there is comprehensive and regular training provided on the Joint Protocol and its effective operation.
We feel that there is inadequate attention given throughout the procedures to the need for independence in the system in relation to investigation of abuse, monitoring patterns of alleged abuse and supporting the child making allegations. We would welcome greater consideration of the introduction of independent advisors whose role would be to support the child and ensure that the process was working effectively in the child’s best interests. Children should be directly consulted about the role such an independent support/advice worker could play.
Dealing with Allegations Made Against Member of Staff Regarding the Abuse of a Child
At para 7.7, the Agency states that in cases where there is insufficient evidence to pursue a criminal prosecution, it is still necessary to determine, “on the balance of probabilities” whether abuse has occurred for the purposes of internal investigation. It would be helpful if the Agency would include a definition of, “on the balance of probabilities” as it is unclear how decisions will be reached in a consistent manner due to the inherent subjectivity associated with individual decision making. This concept should be clearly defined to ensure that all decisions are formed on the same basis and to offer some guarantee of consistency. There is also a clear need for an appeal mechanism should the Agency decide not to carry out an internal investigation following the closure of the criminal investigation.
Another associated area which was of concern for the NIHRC in the “In Our Care” report was the issue of signing off complaints. While this is an area which fits more obviously into the Agency’s complaints charter, because of the gravity of child protection complaints, we feel that there is merit in mentioning the signing off of complaints which have a child protection element in the child protection policy and procedures also.
The “In Our Care” report found that,

“At present there is no formal requirement for young people themselves to have to ‘sign off’ that they are content that a complaint has been properly investigated.”

One of the recommendations arising out of the joint SSI/JJB audit was that it should be standard practice for young people to be asked to ‘sign off’ complaints in the presence of a trusted adult.

We feel that the signing off of complaints should be a matter of procedural course with all complaints, particularly those of a child protection nature. This would enable increased transparency and a method for ensuring and illustrating satisfaction with the process.
We are pleased to note that no internal investigation will be undertaken nor evidence gathered until the criminal investigation has been completed so as not to prejudice the criminal investigation, but we stress the need for support for the child or young person while the investigation is ongoing. It is important that the child or young person is supported throughout in a way that ensures the protection of the integrity of the process
Prevention and Awareness Strategies for Children
We are pleased to note that the Agency wishes to give children and their parents the opportunity to express satisfaction and suggestions for improvement in the type and quality of care and supervision they are receiving. Due to the likelihood that children and young people in the youth justice system will be particularly vulnerable, it is vital that they receive a great deal of support and have access to a trained, qualified advocate at all times. The, “In Our Care” report highlighted a number of concerns about the effective operation of the NIACRO Independent Representative Scheme as a mechanism for raising complaints and issues of concern, including issues which would fall under the remit of child protection. The report criticises the operation of the Independent Representation Scheme as militating against disclosure of issues such as abuse and states,

“The circumstances in which IR visits to children are carried out militates against potential disclosure of abuse. In particular, visits are short and take place in view of staff and other residents. While a child may ask to see an IR in private this will be facilitated by staff but in doing so the child may draw unwanted attention to themselves.”
The draft child protection policy and procedures makes no reference to the scheme or to any anticipated future co-relationship. We feel that much greater consideration should be given to ensuring that children and young people have access to appropriately trained, independent advocates to raise issues under the child protection procedures when appropriate and to receive adequate support.

Protection Statement
In keeping with Articles 2 – Non-discrimination, 12 – Respect for the views of the child and 19 – Protection from all forms of violence of the UNCRC, we feel that the Agency should include an unequivocal protection statement in its child protection policy and procedures. While this may be implicit in the intentions of the Agency, we feel that a protection statement clearly stating that the child will suffer no harassment or reprisals as a result of invoking the child protection procedures is essential to illustrate both the Agency’s commitment to this process and the best interests of the child – Article 3 UNCRC. One of the key principles in the Agency’s child protection procedures is to ensure that children’s rights are protected by regarding,
“...the needs of children as the most important consideration and ensuring that their human rights are protected and that they receive the highest standards of care whilst in custody.”
In order to ensure that children and young people have their human rights protected and that they receive the highest standard of care, it must be clear that they will be in no way negatively treated as a result of invoking the Agency’s child protection procedures. This statement of protection should be explicit to ensure that the fear of reprisals does not hinder young people from speaking out in the youth justice system.
Cultural, Religious and Gender Issues

One of the fundamental perspectives of the United Nations Rules for the Protection of Juveniles Deprived of their Liberty (1990) is,

4. …The religious and cultural beliefs, practices and moral concepts of the juvenile should be respected.

It also states that,

13. Juveniles deprived of their liberty shall not for any reason related to their status be denied the civil, economic, political, social or cultural rights to which they are entitled under national or international law, and which are compatible with the deprivation of liberty.

37. Every detention facility shall ensure that every juvenile receives …as far as possible, religious and cultural requirements.

Section 75 of the Northern Ireland Act 1998 places a statutory duty on all public authorities to promote equality of opportunity and good relations. The effects of policies must be examined for their potential impact on nine identified groups based on age, race/belonging to an ethnic minority, religion, political opinion, sexual orientation, marital status, responsibility for dependents, gender and disability.
The child protection policy and procedures should make reference to cultural, religious and gender issues in terms of provisions which will be put in place to ensure that these do not become barriers to the efficient operation of the child protection policy and procedures for all children and young people. The Agency clearly has legal obligations to ensure that these issues are taken into account and these should be detailed in the policy and procedures itself. An effort to ensure that the child protection procedures work for all children and young people in the youth justice system, regardless of their individual circumstances, would certainly go some way to ensuring the efficient operation of the new procedures in a manner which is inclusive of all children and young people.
Monitoring
Systematic independent monitoring of the child protection procedures is essential to ensure that they are working as they should be and to identify and rectify any problems within the system. Comprehensive monitoring must occur to ensure that all child protection allegations and investigations are dealt with in accordance with the procedures. There is a need to put independent monitoring procedures in place to ensure independence and accountability and also to monitor in terms of gathering section 75 data and building on the findings to constantly improve and develop service provision.
We note that the issue of monitoring is very briefly dealt with in the draft child protection policy and procedures and feel that monitoring arrangements should be in place at each level and within the Agency as a whole to guarantee consistency of approach and that problems are identified and dealt with at the earliest opportunity. There is no reference to the provision of training in terms of implementing and maintaining adequate monitoring arrangements and we feel that this is fundamental part of ensuring consistent and reliable monitoring is undertaken. We believe that the Agency should undertake a thorough review of the child protection policy and procedures in 2-3 years to ensure its proper and efficient operation.
Conclusion
The Children’s Law Centre welcomes the consultation on the draft Child Protection Policy and Procedures and feels that it is an essential development in ensuring the provision of children’s rights within the youth justice system. We hope that the issues raised in this response are helpful and will contribute to the further development of this process. We wish to see the issues we have outlined addressed and would be happy to meet with a representative from the Youth Justice Agency to discuss anything raised in this response.