Response to the Proposal for a Youth Justice Agency Complaints Charter

Children's Law Centre

January 2005

Introduction

The Children's Law Centre is an independent charitable organisation established in September 1997 for the purposes of helping young people, their parents/carers, and professionals understand the laws, which effect children and young people in N Ireland .

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 Proposal for a Youth Justice Agency Complaints Charter.

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 (the Agency) Complaints Charter consultation dated 23/12/04 , we raised a number of questions and concerns. To date, we have not received a reply addressing any of the queries which we raised, in particular, the extremely short timeframe allowed for responses. We highlighted our concern at the substantially reduced consultation period of four weeks, which fell over the Christmas period, when many organisations, including the Children's Law Centre, were closed, effectively halving the already reduced consultation period. We also asked in our letter if you intended to extend the period for consultation, and as with our other concerns, have not received a reply, despite the closing date for responses having now passed.

We also note that it is stated that The Agency's Complaints Charter should be read in conjunction with the Agency's Child Protection Policy. We feel that there would have been more merit in launching the two consultation documents together, with the same timeframe, in order to facilitate conjunctive comment, especially as the Child Protection Procedures consultation was launched on the 23 rd December 2004 and the Complaints Charter consultation closed on 7 th January 2005 . This would have allowed for the documents to be read together for the purposes of framing conjunctive comment only over the Christmas period, which is not practicable.

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 are pleased to note that an equality screening exercise is being undertaken at present under section 75 of the Northern Ireland Act 1998. There are issues in relation to the complaints procedures and the possible differential impact on vulnerable groups such as young people, those with a disability, ethnic minorities, males and females and those with sensitive cultural and/or religious beliefs. For these reasons, we feel that this charter should be screened in for the purposes of carrying out an Equality Impact Assessment.

The Children's Law Centre appreciates the opportunity to comment on the draft Complaints Charter 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 and the Human Rights Act

One of the general principles of the UNCRC - Article 12, Respect for the Views of the Child, has specific relevance to complaints procedures. Article 12 states;

•  State parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child

•  For this purpose, the child shall in particular be provided with the opportunity to be heard in any judicial or administrative proceedings affecting the child, either directly or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

It is suggested that Article 12 of the UNCRC envisages a range of ways in which children's wishes and feelings can be incorporated into judicial and administrative decision making processes whether on an individual or group basis.

The UN Committee on the Rights of the Child sees the provision of effective complaints procedures for children as part of the application of Article 12. The Committee feels that children need to access complaints procedures in all aspects of their lives and has frequently expressed concern at the lack of complaints procedures for children. The Committee recommended in October 2002 that the UK government should take further steps to consistently reflect the obligations imposed by Article 12 by ensuring that all legislation governing procedure in courts and administrative proceedings allowed children and young people who were capable of forming their own views the right to express those views and that those views were given due weight. (CRC/C/15/Add.188)

Article 19 of the UNCRC requires States to take a variety of measures - legislative, administrative, social and educational - to protect children from all forms of violence while in the care of parent(s), legal guardian(s) or any other persons who has care of the child. In terms of effective complaints procedures to provide support for the child and the protection of the child from and prevention of all forms of violence, Article 19 also states that,

"Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and those who have 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. as appropriate for judicial involvement. "

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 Committee has also strongly promoted The UN Rules for the Protection of Juveniles Deprived of their Liberty as a means for implementation of Article 37, some of which are very relevant to this discussion. These are further discussed below.

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.

The relevant rights under the European Convention on Human Rights (ECHR) as incorporated by the Human Rights Act 1998 are Article 6 (the right to a fair hearing) and Article 14 (Non-discrimination). It is clearly established in the case of T & V v UK (1999) 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 trail 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.

Independent Advisor

One of the findings of the Northern Ireland Human Rights Commission's (NIHRC) report, "In Our Care" is that contrary to international standards there is no independent complaints mechanism for children in custody in Northern Ireland . Similarly, the Criminal Justice Review (1999) recommended that,

" Complaints mechanisms should be reviewed . to ensure they include an independent element." (Recommendation 184 (i))

To compound this, in its concluding observations in 2002, The UN Committee on the Rights of the Child recommended that,

".e very child deprived of liberty should have access to. an independent child sensitive and accessible complaints procedure." (CRC/C/15/Add.188)

The introduction of an Independent Advisor into the Agency's complaints charter is to be welcomed. It is essential that all children and young people who come into contact with the Agency are made aware of the role of the Independent Advisor, the fact that complaints can be made directly to the Independent Advisor and that existing complaints can be referred to the Independent Advisor at any stage in the process. The Agency's complaints leaflet does not state this and should make explicit reference to ensure optimum awareness raising. The Independent Advisor Protocol states that where complaints have not been investigated by the Agency, the Independent Advisor will redirect complaints to be internally investigated, ". save in exceptional circumstances where internal investigation is not appropriate."

While there will undoubtedly be an element of discretion on behalf of the Independent Advisor, in the interests of transparency and clarification, further guidance to define 'exceptional circumstances' and 'where internal investigation is not appropriate' is clearly necessary.

There is no reference in the consultation document as to the identity of the Independent Advisor and while the complaints leaflet does state that contact details for the Independent Advisor are available on the back page, there are no details provided at present. We assume that the Agency is in the process of drawing up procedures and guidance around the appointment of the Independent Advisor. If our assumption is founded, we welcome this comprehensive and methodical approach to the appointment of this very important position. It is perhaps the crux of the issue that the Independent Advisor is truly independent and is perceived as such in carrying out its role. As this is such a fundamental aspect of the Agency's complaints charter, it is crucial that the Agency further consults on any procedures or guidance used to secure the appointment of the Independent Advisor and also on the roles and method of appointment of the Independent Advisor's two facilitators.

We note that the Chief Executive will consider the Independent Advisor's recommendations and inform the Independent Advisor of their implementation. He/She will then inform the Independent Advisor of any reasons why either the recommendations or their fulfillment present difficulties and how these might be resolved. We feel that the Agency must be unequivocal in its support of the obligation which must surely exist on the Chief Executive to implement the recommendations made by the Independent Advisor. It is vital that the recommendations of the Independent Advisor are final and are fully implemented in order to give the process both the independence that it purports to and the credibility that it demands.

Access to Information

The UN Rules for the Protection of Juveniles Deprived of their Liberty require that all young people be given details of the complaints procedures and advised as to methods of seeking information, including legal advice. (Rule 25 UN Rules)

We are pleased to note that both the Agency's complaints charter and complaints leaflet states that the child or young person making a complaint will be kept informed at every stage of the process. This is in keeping with Articles 12 and 13 of the UNCRC which confer the on children and young people the right of access to a 'child-friendly', effective complaints procedure and the right to receive and have access to information with extremely limited restrictions placed on this right. However, there is clarity required in the Independent Advisor Protocol as under the heading 'Access to information', it is stated that, "good practice suggests that the parents/guardians and young people should be consulted." This is a somewhat mixed message in terms of access to information and we feel that clarification is necessary in order to ensure that children and young people's rights are respected and that they are kept fully informed of the process at every stage in order to comply with The UN Rules for the Protection of Juveniles Deprived of their Liberty and the UNCRC.

Rule 24 of The United Nations Rules for the Protection of Juveniles Deprived of their Liberty requires that,

"On admission, all juveniles shall be given a copy of the rules governing the detention facility and a written description of their rights and obligations in a language they can understand, together with the address of the authorities competent to receive complaints, as well as the address of public or private agencies and organisations which provide legal assistance. For those juveniles who are illiterate or who cannot understand the language in the written form, the information should be conveyed in a manner enabling full comprehension."

Similarly, the NIHRC "In Our Care" report made recommendations in terms of access to appropriate and accessible information.

While the complaints charter states that information on how to raise concerns or make complaints will be published and made widely available in a variety of formats, there is a lack of information about how the policy, procedure and complaints process will be conveyed to juveniles who are illiterate and those who cannot understand the language in written form. This is also a matter for concern in relation to the proposed wide availability of complaints cards. It is imperative that the Agency is explicit in its arrangements for those who have difficulty understanding the written English language to ensure compliance with the relevant international standards.

A related concern is the absence of information around procedures which will be put in place for the participation and understanding of children in the youth justice system with a mental health or learning disability. In the European Court of Human Rights case S.C v UK (2002) an 11 year old boy with a significant learning disability was tried for attempted robbery in the Crown Court. The Court put in place measures such as no wigs and gowns, not requiring him to sit in the dock, frequent breaks etc. The European Court of Human Rights found a breach of Article 6 (1) ECHR and found that the right of the accused to effective participation in his or her criminal trial generally included not only the right to be present, but also to hear and follow the proceedings. In the case of a child it was essential that he or she be dealt with in a manner which took full account of his or her age, level of maturity and intellectual and emotional capabilities and that steps were taken to promote his or her ability to understand and participate in the proceedings, including conducting the hearing in such a way as to reduce as far as possible his or her feelings of intimidation or inhibition. The Court was of the view that the applicant had not been able to participate in this trial to the extent required by Article 6 (1) ECHR.

The European Court of Human Rights has made it quite clear that those operating within the youth justice system must ensure that children can participate in and understand proceedings in which they are involved. This applies to administrative as well as judicial proceedings in which they are involved. It applies in the decision making processes relating to the Youth Diversion Scheme and to the day to day decisions made in respect of children in custody under the Juvenile Justice Centre Rules and will also apply to the operation of the Agency's complaints procedures. The case also requires steps to be taken to ensure that we afford children and young people with mental health and learning disabilities the right to a fair hearing. The Agency needs to ensure that detailed procedures are put in place which enables young people with a mental health and learning disability to fully participate in the complaints procedure and to receive information in a way that they fully understand which encourages the accessibility of the system. (See below Cultural, Religious and Gender Issues)

One of the recommendations of the Criminal Justice Review (1999) is that;

"On admission to a juvenile justice centre, all juveniles should, as now, be given a copy of the rules governing the juvenile justice centre and a written description of their rights and obligations in a language they can understand together with a description of the ways in which they can make complaints, as well as the address of public or private agencies or organisations which provide legal assistance." (Recommendation 184 (ii))

In light this and of Rules 24 and 25 of The United Nations Rules for the Protection of Juveniles Deprived of their Liberty (above) we feel that information on how to obtain assistance and the types of assistance available from other organisations should be provided at the very outset of a child's admission into the youth justice system. There is no express reference in the Agency's complaints charter that information such as the address of public or private agencies or organisations be imparted to young people. We appreciate that it is stated under Step two of the complaints process that young people should be advised that they may seek assistance or advice from their family, social worker or any other organisation that protects the rights of children and young people, however, it is essential that children are aware of external sources of help available to them in formats that ensure their full comprehension.

Signing Off Complaints

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.

Under the key principles of the Agency's complaints charter it is stated that, "The outcome of each complaint will be fully explained and written comment obtained from the young person where possible." We feel that the signing off of complaints should be a matter of procedural course as opposed to only receiving written comment 'where possible'. This would enable increased transparency and a method for ensuring and illustrating satisfaction with the process

Support for young people

Throughout the complaints charter it is frequently stated that the support of a friend or someone who the young person feels comfortable with will be welcomed and encouraged at all stages. This is a very positive development as the provision of this support will give the young person confidence and make him or her feel at ease. We note that the Agency gives examples of who the young person may involve in the process and states,

" Depending on circumstances and availability, this may include: a friend; a parent or guardian; a family member; or an adult with whom the child feels comfortable."

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. Children in the youth justice system may wish to involve their solicitor, especially in cases of complaints of a very serious nature and /or those which require legal representation. We feel that it should be explicit in the complaints charter that young people have the right to contact their legal representatives for support in making a complaint 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 the young person does not feel comfortable with anyone at the time of making the complaint, none of the young person's friends or guardians can commit to involvement or that the complaint 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 complaints charter and information provided to young people on entering the youth justice system so that they are fully aware of the support available in taking a complaint.

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 complaints charter. 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 making and progressing with a complaint 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 complaints charter is,

"To encourage those who feel they have been treated unfairly or inappropriately to speak out at the earliest possible opportunity so that their grievance can be addressed"

In order to encourage children and young people to make a complaint, it must be clear that they will be in no way negatively treated as a result. This statement of protection should be explicit to ensure that the fear of reprisals does not hinder young people from speaking out and making a complaint.

Independent Representation

One way in which children's views have been put forward in the current system is through the Independent Representation scheme run by NIACRO. The "In Our Care" report says of the Independent Representation Scheme that,

" The aim of the scheme is to provide a service whereby volunteers visit juvenile justice centres on a weekly rota basis, listen to the views of young people and make these views known to staff or management in the schools. The volunteers' training includes a short element on child protection ."

The "In Our Care" report criticises the Independent Representation scheme on a number of grounds, such as, its lack of investigatory powers and limited powers to follow issues up,

"The IR project has a reporting function only. Although NIACRO can follow up child protection (and other) issues through its regular meetings with centre managers, it has no statutory powers of investigation."

It is also criticised in its operation as militating against disclosure of issues such as abuse,

"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 "In Our Care" report emphasises the lack of independence in the current complaints procedures and states that,

". the existence of the IR project should not be seen as a substitute for an effective complaints process with an independent element and on-site independent support for children who have made allegations of abuse."

It would therefore appear that while the use of the Independent Representation scheme as a form of complaints mechanism is far from ideal, there are clearly issues to address in terms of the expected future relationship between the scheme and the new complaints procedures. The complaints charter makes no reference to the scheme or to any anticipated future co-relationship. While the new complaints procedures are to be welcomed, especially in light of the criticisms of the previous arrangements, there is some clarification required to address these issues.

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.

•  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 complaints charter should make reference in 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 making a complaint. The Agency clearly has legal obligations to ensure that these issues are taken into account in its complaints charter and these should be detailed in the charter itself. An effort to ensure that the complaints procedures work for all children and young people in the youth justice system, regardless of their individual circumstances, would certainly go some way to encouraging them to take complaints.

Monitoring

Systematic monitoring of the complaints procedure is essential to ensure that it is working as it should be and to identify and rectify any problems within the system. Comprehensive monitoring must occur to ensure that all complaints 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 dealt with in the complaints charter and agree 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. We also note that the charter states that the responsibility for putting the arrangements in place is that of the senior management. There is no reference to the provision of training in term of implementing and maintaining adequate monitoring arrangements and we feel that this is fundamental part of ensuring consistent and reliable monitoring is undertaken. While no specific reference has been made to section 75 monitoring, we assume that this will form part of the monitoring arrangements and feel that this should be explicitly stated. The issue of independent monitoring has not been addressed and we feel that the Agency should put procedures in place for independent monitoring and make reference to this when finalising the charter.

Conclusion

The Children's Law Centre welcomes the consultation on the draft Complaints Charter 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.