Children and young people in custody

Although fewer children enter the youth justice system than used to be the case, those who do are more complex individuals. The cohort includes children who have mental health or substance misuse issues. Some have previously been excluded from school; many are, or have been, looked-after children. The complexity of the issues that these children have faced, as shown in the graph above, highlights the need for a whole-system approach involving a range of public agencies beyond those of the criminal justice system, and we recommend that much greater priority be given to this in the development of future policy and practice. (Paragraph 24) Diversion from formal criminal justice processing

We recognise the important role that out-of-court disposals, both formal and informal, play in diverting children from formal criminal justice processes and consider them an integral part of the youth justice system. We note that data collection on the effectiveness of such schemes is patchy at best, particularly for informal, non-statutory diversion schemes, which make up around 40% of all out- of-court disposals. Although data is collected on formal out-of-court disposals, we have an incomplete picture of how many children are diverted from entering the criminal justice system.

We recommend that the Ministry of Justice and Youth Justice Board work together to start collecting data centrally on non-statutory, informal diversion schemes, including (but not limited to) data on how many complete a diversion scheme, the impact on reoffending, health outcomes and education outcomes.

We agree with the Chief Inspector of Probation’s recommendation that a national evaluation of the impact and effectiveness of out-of-court disposals be carried out. We recommend that the Ministry of Justice commission such an evaluation, which should consider the impact and effectiveness of formal and informal out-of-court disposals.

We note that there are inconsistencies in the provision and practice of diversion schemes across England and Wales. We recommend that the Ministry of Justice and Youth Justice Board work together to set out national guidance on out-of-court disposal work. As suggested by the Centre for Justice Innovation, this guidance should include an evidence base for out-of-court disposals, examples of good practice and a framework for data recording.

There is significant support for diversion and demand for informal, non-statutory services. For diversion schemes to function well, they need to be sufficiently funded. Investment in upstream service provision should be prioritised. We recommend that the Ministry of Justice work with the Youth Justice Board to review current funding arrangements and ensure that funding adequately reflects the pre-court diversionary work being carried out by youth offending teams. (Paragraph 46) Children and Young People in Custody (Part 1): Entry into the youth justice system 47

We agree with the Ministry of Justice’s priority of diverting children away from the criminal justice system and support early intervention work such as Liaison and Diversion schemes. We are aware that Youth Liaison and Diversion schemes may not be included in the current evaluation taking place of adult liaison and diversion schemes and recommend that the Ministry of Justice commission an evaluation into the effectiveness of Youth Liaison and Diversion schemes. This evaluation should include the number of children who have been diverted away from the criminal justice system as a result of such schemes.

We are aware that children coming into contact with the criminal justice system may not meet the criteria for generic child and adolescent mental health services, despite presenting with multiple needs. We recommend that the Ministry of Justice increase access to mental health support for all children and young people who need it. The Ministry should set out how this will be achieved and resourced. (Paragraph 54) Minimum age of criminal responsibility

The age of criminal responsibility in England and Wales is a contentious issue with substantial arguments in favour both of the status quo age of 10 and an increase in that age. We are not persuaded that it should be immediately increased, but given the arguments in favour of raising it and the fact that the age in England and Wales is lower than in broadly comparable countries, we consider there is a case for reviewing the age of criminal responsibility.

We recommend that the Ministry review the age of criminal responsibility, considering the data available from Scotland and from broadly comparable European and other jurisdictions in which the age is higher than 10 at which it stands in England and Wales. We recommend that the Ministry report on the implications of raising the age in England and Wales to 12 and to 14, including the likely effect on reducing the number of children in custody and alternative methods of disposing of children beneath those ages who have committed serious offences. We recommend that if it concludes that 10 should remain the age of criminal responsibility, the Ministry set out the evidence and reasoning to justify an approach the Minister of State recognises as one that differs from the average. (Paragraph 65) Racial Disproportionality

We are aware of the work the Ministry of Justice and Youth Custody Service have done since publication of the Lammy Review to address disproportionality. The youth justice population has changed considerably in the past 10 years, but children from BAME backgrounds continue to be disproportionately represented, with outcomes getting worse in some areas. We are particularly concerned about the disproportionate number of children held in custody who are from BAME backgrounds - 51.9% of the whole cohort as of May 2020. Race disproportionality is significant and fundamental, visible in every part of the youth justice system. We recommend that the Ministry of Justice set out what resource has been allocated to addressing disproportionality. We are not convinced that disproportionality has satisfactorily been “explained or reformed”. The Ministry should also provide the Committee with detailed research setting out why these communities are so 48 Children and Young People in Custody (Part 1): Entry into the youth justice system disproportionately represented in each part of the system, including the cause of their disproportionate imprisonment. The Ministry should set out what action is being taken and resources allocated.

It is not clear whether diversion schemes disproportionately benefit White children compared with their BAME counterparts, nonetheless, the figures on first- time entrants to the system are concerning. Without centrally collected data on diversion rates, we cannot gain an accurate picture on who is being diverted and who is not, and it is therefore difficult to understand whether diversion schemes are being disproportionately used. In adopting our previous recommendation that the Ministry of Justice and Youth Justice Board work together to collect data on informal diversion schemes, the two bodies should include demographic information in that data.

BAME children are disproportionately remanded to custody and some of the children remanded to custody, will not then go on to receive a custodial sentence. The Youth Justice Board should update the Committee on the findings of their commissioned research. We agree with Transform Justice, that the disproportionate use of remand has not satisfactorily been explained, and we recommend that the Ministry of Justice provide an explanation of why the levels of BAME children being remanded to custody are disproportionately high. This explanation should include comparative data on the numbers of BAME children and other pleading guilty and differences in the types of offences of which BAME children and others are accused, in particular where they are likely to result in remand in custody. The Ministry should also set out the steps it is taking to prevent unconscious bias in decision-making. (Paragraph 83) Youth Courts and Sentencing

We note that the number of children on remand is high and that two thirds of children given a remand to youth detention accommodation did not subsequently receive a custodial sentence. Multiple factors appear to contribute to these numbers: an increase in serious violence; lack of credible community alternatives; and limited amount of time available to put together an alternative bail package may all be contributing factors. We welcome the MOJ’s current review of youth remand, but request more detail on what that review is covering. The Ministry should also set out the timeframe in which they intend to complete the review and publish its results and any action plan.

We were concerned to hear reports of children being remanded to custody pending psychiatric reports. Evidence received suggested that this is unnecessary and potentially damaging for a child. We ask the Ministry of Justice to set out how many children have been sent to custody pending a psychiatric report. We recommend that the Ministry set out what steps it is taking to prevent this from happening.

Referral Orders may be appropriate in some circumstances, but there appears to be consensus that more flexible sentencing options would be beneficial. We recommend that the Ministry of Justice review current sentencing options for children with a view to introducing a Youth Rehabilitation Order as a sentencing option for first-time offenders pleading guilty. (Paragraph 103) Children and Young People in Custody (Part 1): Entry into the youth justice system 49

We agree that the introduction of a feedback loop between the Youth Court (magistrates and district judges) and Youth Offending Teams and the young person may help improve transparency and support rehabilitation. The Ministry of Justice should review current sentencing options, with a view to introducing a feedback loop.

Delays have a fundamental impact on all those involved in proceedings. The Ministry of Justice and HMCTS should set out what is being done to specifically address delays in the youth justice system and manage any existing backlogs. The Ministry should include details on what the current capacity is in the youth courts, and what plans exist to increase capacity.

Under the principle that punishments should fit crimes, we are concerned that children who turn 18 while waiting for proceedings against them to begin are then dealt with and sentenced as adults. In particular, this is alarming when it happens simply because of delays in bringing cases to court. Defendants may have no control over delays, but may face profoundly different outcomes simply because a birthday has passed. There is significant potential for injustice here, and we believe that proceedings and sentencing should be carried out on the basis of the circumstances prevailing at the time the offence was committed, including the age of the offender. We recommend that the Ministry of Justice legislate to ensure that those who turn 18 while waiting for proceedings against them to begin are automatically dealt with in the youth justice system and sentenced as children.

Children and young people going through the court system have very distinct needs, many having neurodevelopmental and communication needs. They may not fully understand proceedings. Every opportunity must be made to ensure that children are not unfairly disadvantaged; everyone should be able to understand and fully participate in proceedings.

We agree with the Royal Colleges’ recommendation that the Registered Intermediary Scheme be made available to vulnerable child defendants. We recommend that the Ministry of Justice set out how it will extend this scheme to ensure that children have access to adequate support. The Ministry should also set out how all children, regardless of specific needs, are supported through the criminal justice process to ensure that they fully understand the process and are able to participate in an informed and full manner.

The youth criminal justice system can be complex to navigate for children and young people, particularly as children reach court proceedings. We recommend that direct recruitment to the youth magistracy be introduced, which would allow magistrates to specialise in the youth justice system from the outset. We also recommend that the Ministry of Justice and Her Majesty’s Courts and Tribunal Service consider enabling peer advocates to have an increased role in youth court system.

We reiterate the importance of data collection here; backlogs have a knock-on effect on the system, and it is imperative that we understand what the current situation looks like if we are to address it going forward.

The Covid-19 pandemic has affected every area of the criminal justice system, including youth justice. The Committee appreciate that Covid-19 has presented 50 Children and Young People in Custody (Part 1): Entry into the youth justice system the youth courts with numerous challenges. Delays affect all participants in court proceedings; defendants awaiting trial will spend longer in custody on remand or on bail in the community, and victims will wait longer for justice. We invite the Ministry of Justice to set out the number of outstanding cases in the youth courts and what steps are being taken to ensure that cases are dealt with expeditiously.

Covid-19 has necessitated a shift to remote hearings, but we have heard concerns from witnesses about their use. We accept that this is a necessary interim measure in response to the pandemic, but the Ministry of Justice should set out what work is being done to ensure that all parties to a proceeding are adequately supported during remote hearings. We reiterate our previous recommendation, that the Ministry should urgently commission a review that evaluates the effect of Covid-19 measures in the magistrates’ courts and the Crown Court. This review should also consider the specific effect Covid-19 measures have had on access to justice and fairness of outcomes for children and young people. (Paragraph 139) Children and Young People in Custody (Part 1): Entry into the youth justice system 51

Throughout this inquiry, we have heard of significant concerns about the use of separation across the youth estate - the effect it has on the individual and on the institution itself. Concerns around the use of separation in the youth secure estate are of long standing. We find it unacceptable that data on separation in Young Offender Institutions is not gathered and published and recommend that the Ministry of Justice rectify this immediately. We find it unacceptable that data on separation in Young Offender Institutions is not gathered and published and recommend that the Ministry of Justice rectify this immediately.

The findings of HM Inspectorate of Prisons’ report on separation are serious and echo much of what has been reported in evidence to us and in other publications. We are concerned about differences in practice across the estate. The Ministry of Justice and Youth Custody Service should set out what is being done to ensure coherent and consistent practice across the estate.

We note the frustration of HM Inspectorate of Prisons about the extent to which its recommendations for action are implemented, and the pace of implementation. That said, we welcome the Government’s commitment to develop a new policy framework on separation and recommend that the Ministry of Justice and Youth Custody Service set out when this piece of work will be completed and when the new framework will be implemented.

A significant proportion of children in custody have a mental health need. The Secure Stairs model is a welcome development, but we are disappointed to hear that children are sometimes held in custody because of an absence of appropriate mental health treatment beds. In cases where the mental health of offenders is a substantial factor in their self-harm or their level of risk to staff or fellow offenders, we recommend that the Ministry work with the Department of Health and Social Care to identify mechanisms to ensure appropriate placement for individuals who require treatment and to make sure that young offenders are in the right place to receive the treatment they need.

Self-harm across the youth secure estate is alarmingly high. There has been a welcome reduction in consecutive months since January, but self-harm is at the highest level in the last five years. The Ministry of Justice and Youth Custody Service should set out what measures they have put in place specifically to address self-harm.

The Ministry of Justice and Youth Custody Service must also seek to understand why self-harm appears to have reduced during the Covid-19 pandemic, and what can be learned from that.

Substantial concern has been expressed to us about use of force against children and young people across the youth custodial estate, and we note that sanctioned use of 42 Children and Young People in Custody (part 2): The Youth Secure Estate and Resettlement force has been rising. While there appear to be sound monitoring and governance arrangements at some establishments, such as Parc and Oakhill, this does not appear to be the case for others, as highlighted by HMIP.

We recommend that the Ministry of Justice and the Youth Custody Service set out the reasons why use of force is rising in youth custodial institutions and what steps are being taken to ensure that any such use is necessary and proportionate. We recommend that the Ministry and Youth Custody Service conduct a light-touch review of monitoring and governance processes in place for use of force involving children and young people in all the institutions that hold them to establish that those processes are sufficiently robust.

Techniques specifically designed to cause pain to children should never be used as routine methods of managing offenders. Any use of such techniques should always be a last resort in the interests of safety from physical harm. None the less, we acknowledge the views of both Peter Clarke and Charlie Taylor that in the real- life circumstances of a Youth Offender Institution or a Secure Training Centre, the safety of staff and of of offenders themselves may on rare occasion require direct and immediate physical force that may inflict pain.

We welcome the Government’s commitment to remove pain-inducing techniques from the MMPR training manual and to focus it on behaviour management and restraint. We are disappointed that, six months after Charlie Taylor recommended this change, there is no indication of when it will happen. We recommend that the Ministry of Justice and Youth Custody Service remove pain-inducing techniques from the MMPR syllabus without further delay. The Ministry and Youth Custody Service should also set out a timeframe for conclusion of the review, redesign and delivery of the new syllabus. (Paragraph 68) Disproportionality in custody

We welcome the Ministry of Justice’s commitment to implement in full the remainder of David Lammy’s recommendations within the next 12 months. The Ministry should set out what resource has been allocated to this piece of work. We recommend that the response to this Report provide a full and detailed timetable setting out how and by when those recommendations will be implemented. We recommend that that timetable be accompanied by an outline of how sufficient resources will be provided in the immediate and longer terms to ensure that disproportionality in the system is reduced now and remains so in future. (Paragraph 77) Youth Justice Reform

We welcome development of the secure school model and agree with the Minister for Justice, Lucy Frazer QC MP, that this offers an opportunity to reform the existing estate to better meet the needs of the children it holds. It is disappointing that the timetable for opening has been subject to continued delays, with opening of the first school planned for 2020 now pushed back to 2022, five years after the original commitment to developing two secure schools. The Ministry of Justice should set out Children and Young People in Custody (part 2): The Youth Secure Estate and Resettlement 43 why the opening has been subject to repeated delays. We recommend that it guarantee that the first school will open as now planned in 2022, and set out what is being done to ensure that that opening is achieved on time.

We welcome the Government’s long-term ambition to replace YOIs and STCs with secure schools, but we are concerned about the level of commitment demonstrated in achieving this aim, given the length of time it has taken to develop a single secure school. We recommend that the Ministry publish a timetable setting out how, where and when it plans to replace YOIs and STCs with secure schools and what resource has been allocated to ensure this commitment is achievable and is met.

We welcome the Government’s commitment to reform the rest of the estate, but we are concerned that the youth estate in its current form is not meeting the needs of the children being held. We have heard about high levels of violence and self- harm and about staffing issues. The Ministry of Justice should set out specifically what reforms to the existing estate have taken place since the Taylor Review and what reforms are in progress or due to commence and complete over the next two years, before the new secure school opens.

We welcome the recent announcement that officers working in youth custody will become Youth Justice Specialists after completing degree-level training, but we remain concerned about staff turnover in the youth estate, and the effect that staffing difficulties have on day-to-day running of the secure estate. The Ministry of Justice should set out its workforce strategy, specifically relating to staff in the youth custodial estate. We further recommend that the Ministry commission research into the reasons why staff turnover has been high. (Paragraph 99) Resettlement and Reoffending

It is essential that children have access to appropriate Employment, Training and Education services when they leave custody, not least to reduce the risk and the rate of reoffending. The Ministry of Justice, Youth Custody Service and Youth Justice Board should continue to work together to ensure that all children and young people have adequate access to education and purposeful activity while in custody and that meaningful opportunities continue through into the community.

Collaboration between agencies is imperative if children’s resettlement needs are to be met during their time in custody and followed through to the community. We recognise that the quality and ease of collaboration between agencies may vary between establishments and areas, but it is sub-optimal that children may be subjected to a number of different, uncoordinated resettlement plans. The Ministry of Justice and Youth Custody Service should set out what work is being done to reduce duplication and ensure that children have a single coordinated resettlement plan.

It is apparent that accommodation is a significant problem for some children being release from custody. It is unacceptable that a child should not know until the day of their release where they will live the day after. We agree with the recommendation made by HM Inspectorate of Prisons and HM Inspectorate of Probation that the Ministry of Justice must develop a national accommodation strategy for children 44 Children and Young People in Custody (part 2): The Youth Secure Estate and Resettlement released from custody. We acknowledge the commitment made by the Minister of State to return to the Committee to report on progress made in these areas.

We welcome the work being done to improve transition planning, and we note that work is under way in the Ministry of Justice on how best to manage transition into adult custodial settings for those who turn 18. While cut-off points between youth and adult justice are necessary, we acknowledge concerns, not least from Young Advisers with practical experience, that the simple change from being 17 to 18 may not denote full maturity in some young people who are in custody, and that the transition may prove to be what the Chief Inspector of Probation calls a ‘cliff edge’ for those individuals.

While some transition planning may take place before a young person leaves the youth estate, we are not convinced that the adult estate is sufficiently equipped to support all those who make that move. We recommend that the Ministry of Justice mandate appropriate transition planning in the over-18 estate for those coming from youth estate to ensure that those who do so do not find themselves on a ‘cliff edge’. We recommend that the Ministry of Justice set out when the ‘transition from youth to adult custody’ policy framework will be published and how it will be implemented across the youth and the adult estates. The Ministry should also update us on the practical steps being taken in the interim to ensure that those young people who do make that transition receive the support they need and avoid any drop-off in service provision and support. (Paragraph 134) Children and Young People in Custody (part 2): The Youth Secure Estate and Resettlement 45