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Summary: The ruling responds to a legal challenge requesting that the Government should inform children and young people who have been unlawfully restrained while detained in secure training centres.
[11 January 2012] - In a judgment handed down this afternoon (11 January), a High Court Judge says it is highly likely that large numbers of children were unlawfully restrained in secure training centres (STCs) for at least a decade (1998-2008). Furthermore, none of the statutory agencies charged with monitoring children's care took action to stop the unlawful treatment. The Youth Justice Board is particularly criticised, with Mr Justice Foskett noting the organisation's ‘apparent active promotion’ of unlawful restraint – due to its ‘confused thinking’ which was evident until 2007. It was not until the inquest held that year into the death of 14 year-old Adam Rickwood at Hassockfield STC that YJB officials acknowledged their understanding of the law had been wrong. It was this child's death, alongside the death following restraint of 15 year-old Gareth Myatt at Rainsbrook STC, also in 2004, which led to information coming into the ‘semi-public domain’about unlawful restraint. Mr Justice Foskett says the ‘fullest explanation’ has not yet emerged as to why the widespread abuse of children's rights went unchecked for so long and why there were apparently so few complaints from child victims of unlawful restraint. He says the Children's Rights Alliance for England (CRAE), which brought this legal action to try and force the Ministry of Justice to make contact with past victims, ‘has served well the interests of those for whom it is concerned by shining a light into a corner that might otherwise have remained in the dark’ and characterises the decade-long abuse of children in custody as ‘to say the least, a sorry tale’. Despite this overall scathing assessment, Mr Justice Foskett rejected arguments made by lawyers acting for CRAE that the Government is under a legal obligation to identify potential victims and notify them of their right to seek compensation. CRAE argued there are two groups of potential victims – those children who were restrained for “good order and discipline” in breach of the legal rules governing restraint; and those children who were subject to the “distraction techniques” other than in extremely grave situations. These approved techniques, which have subsequently attracted strong criticism from the United Nations, the European Torture Committee and parliamentarians on the Joint Committee on Human Rights, involved staff inflicting a sharp blow to the child's nose or ribs or yanking back their thumb. Adam Rickwood was subject to the “nose distraction” hours before he killed himself leaving a note in his room asking what gave staff the right to hit a child in the nose. It took former Labour Ministers more than three years after Adam's death to suspend this barbaric method of controlling children. The High Court Judge was not prepared to develop common law by building on the long-established rights of victims to access justice by requiring the state to proactively assist them (albeit in a relatively limited way). CRAE argued the unique facts in this case supported such a development: the extreme vulnerability of incarcerated children; the oppressive culture of unlawful restraint; and the omissions and commissions of the authorities leading to an unlawful regime going unchecked for at least a decade. Mr Justice Foskett himself observed that children subject to unlawful restraint ‘would simply have accepted it as part and parcel of the routine’ and noted a channel for complaints is important ‘but if,in reality, it leads nowhere, then there is no effective access to what is at the end of the channel’. But he feared ordering the Ministry of Justice to take the action urged by CRAE could have a ‘springboard’ effect resulting in similar future claims on behalf of children in local authority care or hospitals or even on behalf of vulnerable adults. The Judge concluded: ‘If any such change of culture is to take place it would, as it seems to me, be something that should emerge in a more considered way than by way of a piecemeal development of the common law designed to meet what may seem to be a strong case on the merits’. Whilst not ordering Ministers to take action, Mr Justice Foskett recommends they, at least, consider ‘whether something ought to be done’ to remedy past wrongs: Merely because the action of disseminating the relevant information is not required by the law does not mean that there is no obligation to consider whether some action is necessary if only as a matter of good and fair administration. The fact that those potentially affected were vulnerable children and young persons would, in my judgment, at least dictate the need for the Defendant to consider whether something ought to be done. The Judge suggests justice could be achieved through victims of unlawful restraint coming forward, noting: ‘It probably requires just one former detainee, looking back at his or her experience in an STC and having conducted the necessary preliminary inquiries, to pursue a well-publicised claim and others will be alerted to the potential of pursuing matters’. To read the full article, which includes more extracts from the hearing, click here. Further Information:
pdf: http://www.crae.org.uk/news-and-events/news/high-court-issues-damning-ju...