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