Supreme Court rules against children who suffered alleged abuse – but reinstated an important legal right

The Supreme Court, London.

Two brothers who claim they suffered harassment and abuse from neighbours have lost a landmark Supreme Court bid for compensation from their local council – but the Court reinstated the potential for children and young people to bring negligence claims against local authorities who have failed to protect them from harm.

The pair, identified only as CN and GN, alleged Poole Borough Council negligently failed to protect them from harm between 2006 and 2011, when they were aged under 10.

Part of their case was that they should have been taken into care for their protection.

But a panel of five justices ruled that their claim could not go ahead because the local authority had not assumed responsibility for their safety and did not owe them a duty of care.

The judges said there were “simply no grounds” for the council to take them into care, because the alleged harm they suffered was from their neighbours and not from a lack of parental care.

Lord Reed, giving the lead ruling, said: “Although the court does not have before it all the evidence which may emerge at a trial, there is no reason to believe that the claimants could overcome these fundamental problems as to the legal basis of their claim.

“That being so, it is to the advantage of all concerned that the claim should not proceed to what would be a costly but inevitably fruitless trial.”

CN, who is severely disabled, and his brother GN claimed the council knew they were at foreseeable risk when they were housed next door to a family who engaged in persistently anti-social behaviour.

The pair were said to have suffered significant physical and psychological harm as a result of attacks, threats of violence, verbal abuse and vandalism, and GN attempted suicide at the age of 12.

They brought claims against the council for breach of a common law duty of care derived from statutory duties under the Children Act 1989 but, in 2017, the Court of Appeal ruled against them.

The Supreme Court justices agreed with the Court of Appeal’s decision that CN and GN’s case should not proceed, but came to a different conclusion on the effect of previous rulings.

Lord Reed said that, although it did not apply in this case, there are circumstances in which a local authority can be held accountable for failing to protect vulnerable children.

The case was supported by charities including Article 39, which fights for the rights of children and young people who live in children’s homes, prisons and other institutions, and the Care Leavers’ Association, which supports care leavers of all ages.

Lawyers from Simpson Millar, which represented the charities, welcomed the ruling, saying it offered clarification on the law and meant other claims – which had been on hold following the Court of Appeal decision – could now go ahead.

Peter Garsden, a partner at the law firm, said: “This decision affects some of the most vulnerable members of our society and we are delighted that those affected will continue to have access to the justice that they deserve in instances where they are let down by those they have put their faith in.”

Carolyne Willow, director at Article 39, said: “We are incredibly relieved that the Supreme Court has reinstated the potential for children and young people to bring negligence claims against local authorities who have failed to protect them from harm.”

David Graham, national director of the Care Leavers’ Association, said: “A court ruling that a local authority had a duty of care and acted negligently can give care leavers a real sense of justice and vindication, as well as financial compensation for harm that should never have happened.

“We hope the courts will now quickly deal with the backlog of cases from adults who were failed as children.”

How Low Staffing Impacts On Child Safety In Prisons

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Staffing problems meant far too many boys were locked up in cells nearly all day in young offender institutions, according to an annual report by HM Inspectorate of Prisons on the experiences of detained children aged 12 to 18.

Though the numbers who had felt unsafe in YOIs had fallen from a record high level in 2015–16, surveys in 2016–17 still found almost 40% had felt unsafe. Children in secure training centres (STCs), home to a larger number of under-16s, generally felt safer than those in YOIs but a fifth said they had no-one to turn to if they had a problem.

And in 2016–17, across both types of custody, there were disproportionate numbers of black and minority ethnic children, and children from Gypsy, Romany or Traveller communities, compared to their representation in the general population. Children with disabilities and mental and emotional health problems, and with backgrounds in local authority care, were also held in high numbers.

The report – Children in Custody 2016–17 – summarised findings of surveys distributed in HMIP inspections in the year. A total of 720 children completed the surveys. In his foreword, Peter Clarke, HM Chief Inspector of Prisons, recalled that in February 2017 he had warned ministers that none of the establishments holding children were judged in inspections to be safe and the speed of the decline in safety was “extraordinary”.

In 2016–17, Mr Clarke added, “the impact of staffing constraints appears to have been more keenly felt by children this year. In YOIs…we have found far too many boys being locked in their cells for more than of 22 hours each day, with staff struggling to manage the complexities of regimes where some boys can only be allowed out of their cells while others are locked up. Too often in STCs, we found that staff were being redeployed from their assigned unit to cover gaps elsewhere in the centre. More than a fifth of children in STCs said they had no one to turn to if they had a problem, meaning that many vulnerable children with complex needs were trying to manage their problems without support.”

Overall, the numbers of children in custody has fallen by 70% since 2006–07 and the number of girls continues to fall – though Mr Clarke said it was important their specific needs were not overlooked.

Among key findings:

  • Nearly half (49%) of children in STCs were from a black or other minority ethnic background. 12% said they were Muslim and 10% were from a Gypsy, Romany or Traveller background.
  • More than one in five children (22%) reported feeling unsafe at some point since arriving at the STC.

In YOIs:

  •  Nearly half (48%) of boys identified themselves as being from a black or minority ethnic background. Around one-fifth (22%) were Muslim and the proportion of boys who   had experienced local authority care was 42%. Almost one-fifth (19%) of boys reported having a disability.
  • 39% of boys said they had felt unsafe, a fall on last year’s figure of 46%.
  • There was a significant fall in the proportion of boys who said they could have a shower every day (71% compared with 88% in 2015–16) and the proportion who could use the phone every day had fallen significantly from 80% to 68%.

Mr Clarke said:

“Last year, I invited those with the responsibility to develop and improve policy to take our findings seriously. I trust that the realignment of responsibilities between the Youth Justice Board, the Ministry of Justice commissioners of services and the new Youth Custody Service within HM Prison and Probation Service will lead to improvement, and that the process of restructuring and reform will not detract from the urgent need for an effective operational response to the issues raised in this report. The need for this to be the case has actually increased, particularly when it comes to improving both the perceptions and the reality of safety. Until this is addressed, the broader objectives of delivering education, training and creating a rehabilitative environment will not be achieved.”

A copy of the report, published on Wednesday 23 November, can be found at http://www.justiceinspectorates.gov.uk/hmiprisons/inspections

HMYOI Werrington – Improvements made but challenges remain say Inspectors

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HMYOI Werrington was working more positively with the young people it held, but still had areas to address, said Nick Hardwick, Chief Inspector of Prisons. Today he published the report of an unannounced inspection of the young offender institution near Stoke-on-Trent.

HMYOI Werrington holds up to 160 boys under the age of 18. During the inspection about two-thirds were sentenced and one-third on remand. The significant risks and accountability of institutions holding children and young people means they are now inspected more frequently. This inspection followed an inspection in 2012 where inspectors found a reasonably caring institution, but one that had slipped back, where expectations were too low, poor behaviour not sufficiently challenged and where young people had little to do. This inspection found some improvements, but with significant shortcomings remaining.

Inspectors were pleased to find that:

  • the new purpose-built reception was impressive and young people reported very positively about their treatment on arrival;
  • behaviour management had improved;
  • use of force had fallen, was better managed and incidents were now more likely to be de-escalated by staff;
  • child protection and safeguarding arrangements were very effective and Werrington was well connected with the local authority in support of this work;
  • relationships between staff and young people were positive, but this was often not reflected in formal structures such as case notes or an effective mentoring scheme;
  • there were higher expectations of young people and outcomes for young people from minorities were reasonably good;
  • young people generally had a reasonable amount of time out of cell;
  • Werrington was developing its strategy to improve learning and skills and attendance and behaviour were better; and
  • work in support of resettlement remained good.

However, inspectors were concerned to find that:

  • although anti-bullying measures were more robust, levels of violence remained high;
  • the quality of respect was critically undermined by some very poor environmental conditions: some cells were filthy and a few were not in a fit state to house young people; and
  • some teaching required improvement and the range of vocational training was limited.

Nick Hardwick said:

“Werrington has taken steps to address some of the key issues we identified at our last visit. There is now a more positive approach to working with young people and some significant risk continues to be reasonably well managed. This will be more sustainable and useful if it is supported by effective systems and structures to embed the improvement. Improvements to the provision of purposeful activity need speeding up and the cleanliness of accommodation requires immediate attention.”

Michael Spurr, Chief Executive Officer of the National Offender Management Service (NOMS), said:
“I am pleased that the Chief Inspector recognises the progress that is being made at Werrington.

“The Governor and his staff are working positively to offer good resettlement and improve the behaviour of a complex and challenging population.

“They will continue to build on these improvements as they address the recommendations set out in the report.”

A copy of the report can be found on the HM Inspectorate of Prisons website from 6 March 2014 at http://www.justice.gov.uk/publications/inspectorate-reports/hmi-prisons/prison-and-yoi/werrington

YJB Child Deaths In Custody – Lessons Learnt Report published

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The YJB’s report Deaths of Children in Custody: Action Taken, Lessons Learnt explains the actions taken by the YJB in response to recommendations made by the Prisons and Probation Ombudsman, coroners and Serious Case Reviews, following the deaths of children in custody since 2000. It also identifies the work that still needs to be undertaken to ensure that when children must be held in custody, it is in a safe environment which protects them from harm.