Posted by NAYJ on May 7, 2020
We’ve experienced a period of ‘lockdown’ and ‘self-isolation’ to help mitigate the worst effects of the Covid-19 pandemic. Some have compared the experience to imprisonment because we’ve had our liberty taken from us and our daily patterns have been forcibly interrupted. Whilst one understands this comparison, it is at best incomplete, and at worst misleading, particularly if we’re considering imprisonment of children. Individual circumstances differ but even during this most people are able to speak with others on the phone or play a game on-line. We can leave the house to exercise or help a neighbour. We can eat what we choose to, when we choose to, limited only by budget or availability in our local stores.
Solitary confinement in prison is an altogether different experience. In her Sourcebook on Solitary Confinement, Shalev (2008) illustrates how, with the exception of the death penalty, solitary confinement is the most extreme sanction which may be legally imposed on prisoners. It adversely affects the health and wellbeing of those subjected to it and the consequences can be very serious if experienced for prolonged periods. Shalev finds there has been an increase in the use of strict, and often prolonged, solitary confinement in prisons and other places of detention across the world in recent years. There are potentially harmful consequences, not only for the individual concerned but also for the wider communities to which they will eventually return.
The UN Committee on the Rights of the Child recommends that solitary confinement should not be used against children. This is also reflected in inspection criteria for assessing the treatment of children in detention. However, any of the current methods of separating children from their peers has the potential to become solitary confinement if the child experiences confinement “…for 22 hours or more a day without meaningful human contact.” (Rule 44 of The United Nations Standard Minimum Rules for the Treatment of Prisoners, the ‘Nelson Mandela Rules’).
‘Meaningful human contact’ is a contested term, referring to the amount and quality of social interaction and psychological stimulation that human beings require for mental health and well-being. According to Penal Reform International, such interaction requires the human contact to be face-to-face and direct (without physical barriers) and more than fleeting or incidental, enabling empathetic interpersonal communication. Contact should not be limited to those interactions determined by prison routines, the course of (criminal) investigations or medical necessity. Contact is not meaningful if prison staff simply deliver a food tray, mail or medication to the cell door or if prisoners are able to shout at each other through cell walls or vents. Meaningful human contact is direct rather than mediated, continuous rather than abrupt, and must involve genuine dialogue. It could be provided by prison or external staff, individual prisoners, family, friends or others – or a combination of these.
Her Majesty’s Inspectorate of Prisons (HMIP) has long reported concerns about the conditions that children are held in when managed on segregation units, and the regimes on offer to separated children. They had to reiterate this in their latest thematic inspection on the topic. Published in January 2020, it investigates the use of ‘separation’ in Young Offender Institutions (YOIs).
HMIP found that children’s experience of separation differed dramatically depending on the establishment they were held in and even between different units in the same YOI. Inspectors found the regime offered to most separated children was inadequate. While it tended to be better on designated segregation units, nearly all separated children spent long periods of time in their cell without any meaningful human interaction. They found children unable to access the basics of everyday life, including a daily shower and telephone call. In the worst cases children left their cells for just 15 minutes a day.
These findings are consistent with the treatment of child ‘AB’, whose isolation and lack of education at Feltham prison was found by the High Court to be unlawful (R (AB) v Secretary of State for Justice  EWHC 1694), in a judicial review case pursued by the legal team at The Howard League for Penal Reform.
The boy came from a traumatic childhood consisting of abuse, witnessing overdoses and a death. He suffered with PTSD, ADHD and Conduct Disorder, but was locked in his cell for over 22 hours a day for more than 15 continuous days. For 127 days the prison failed to comply with its own rules around the removal of children from the usual regime in prison. AB had no access to any form of education for the first 55 days at Feltham, followed by only 15 hours in total in the two months prior to the hearing. AB’s isolation was declared unlawful by the court because the prison failed to comply with its own rules around the removal of children from the usual regime in prison and failed to provide education.
Three years on, HMIP is still reporting concerns about the conditions that children are held in when managed on segregation units, and the regimes used to separated children. Their 2020 report found that children's experience of separation differed dramatically depending on the establishment where they were held and even between different units in the same YOI. Inspectors have found the regimes offered to most separated children to have been inadequate.
The UK is out of step with a growing international consensus that children should never be placed in solitary confinement because it “perpetuates, worsens, or even in some cases precipitates mental health concerns that can lead to long-term and often permanent changes in adolescent brain development” (District Court for New York, US). The widespread use of solitary confinement of children in prisons in England was exposed in 2015 in Unlocking Potential a report by the Children’s Commissioner. It found that one-third of children in prison will spend time in isolation and that the practice is used disproportionately in respect of children from looked after and ethnic minority backgrounds.In a ruling delivered in 2015, the Supreme Court held that there are “well known” risks of solitary confinement and that prolonged solitary confinement – defined as being held in solitary confinement for longer than 15 days – is particularly harmful.
The psychologist Donald Winnicott argued that a child can learn to be alone only in the presence of a trusted adult. However, trusting relationships with adults can be difficult for children in prison to establish. For example, the most recent Children in Custody report (2018-19, published in February 2020) by HMIP found that 42 per cent of children surveyed reported experiencing some sort of victimization by staff. Children from black and minority ethnic backgrounds were significantly more likely than children from white backgrounds to report being verbally abused or threatened/intimidated by staff. The inappropriate use of separation, or solitary confinement, serves to strengthen arguments by a coalition of organisations to End Child Imprisonment in Secure Training Centres and YOIs.
The pandemic promises to bring further destruction and disruption in many forms over the coming weeks and months. Children confined in prison, and those that work there with them, will be exposed to this more than most in society. The situation encourages us, indeed requires us, to understand more about the damaging practices in our prisons for children. The most vulnerable children there need to be removed as a matter of priority.
Ross Little, 7 May 2020