The nature of detention of children in the UK –
in a variety of settings across the jurisdictions
– makes it important for NPM members to
consistently identify common challenges, share
good practice and make recommendations.
By focusing on the specific needs of children
and young people in detention, the children
and young people subgroup will support
the NPM to fulfil its preventive role20 through
sharing good practice on visits and inspections,
a holistic and system-wide analysis of the
situations where children are at risk of
ill-treatment, and making recommendations
designed to improve policy and practice for
children in detention.
The subgroup first met on 18 March 2013
and meets three times a year. It is chaired
by the Deputy Children’s Commissioner for
England and reports to the NPM steering
group. The terms of reference – discussed at
the first subgroup meeting and subsequently
approved by the steering group – can be
seen in Appendix 4.
At its first meeting, the subgroup discussed
a joint response to the Ministry of Justice’s
consultation paper Transforming Youth
Custody21, which proposed the creation of
secure colleges for children in youth justice
custody. This response was submitted
in 2013, and greatly benefited from
the expertise and range of experience
of subgroup attendees and other NPM
members. Future work of the subgroup
will include thematic discussions around
children’s health in secure settings,
segregation practices for children in
detention, under-18s in police custody and
children in immigration detention.
‘De facto’ detention
UK NPM members identified concern for the
practice of de facto detention, where individuals
who are not formally detained by law are
deprived of their liberty in practice. With this
come significant risks for individuals who do
not enjoy a proper process for the review of
their detention. The NPM identified a concern
that those inspecting the conditions in which
detention takes place may miss individuals who
are de facto detained. Furthermore, general
acceptance by professionals, carers and the
public that such de facto detention is acceptable
for some individuals because they cannot
exercise choice may further jeopardise their
human rights.
UK NPM members identified the following
settings where individuals are at risk of being
de facto detained, including mental health
and learning disability hospital care general
hospital care, care homes, children’s homes
and residential schools, and community
settings, including shared and individual
tenancies.
The definition of de facto detention is a
complex one, in which the cumulative effect
of several factors can constitute deprivation
of liberty, where one factor alone may not.
These factors include:
• whether the person is confined in a
restricted space for a not negligible
length of time
• whether the person has given valid
consent to the confinement
• whether the state is responsible
(for example, independent care homes
may breach Article 5 of the European
Convention on Human Rights if they
20 See guidance in: Association for the Prevention of Torture. Optional Protocol to the UN Convention against Torture:
Implementation Manual, Chapter V – Operational Functioning of NPMs. At: http://www.apt.ch/content/files_res/opcatmanual-english-revised2010.pdf
21 See: http://www.justice.gov.uk/downloads/about/hmipris/npm-response-transforming-youth-custody.pdf
27
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