Friday, 4 August 2017

An abysmal situation - care proceedings - the case of X

Updated 7th August: Re X (A Child) (No. 4)

The case of X (A Child) highlights the lack of clinical, residential and other support services so desperately needed by the increasing numbers of children and young people with mental health problems.  Such children all too frequently come into contact with either the criminal justice system or are the subject of care proceedings or, as in X's situation, both.

X is now 17 years old and she is subject to a care order made on 15th June 2017 by the President of the Family Division - Sir James Munby. The judgment dealing with the care order is X (A Child) (No. 2) - [2017] EWHC 1585 (Fam).

X is also subject to a Detention and Training Order (DTO)
made by the Youth Court and she is held in a secure unit ZX.  Her release is expected mid-August 2017.   Youth Courts sit in private and are subject to reporting restrictions and so we do not know either the detail of the court proceedings or the reasoning of the Youth Court which led to the DTO.  Youth Courts are subject to Sentencing Principles set out by the Sentencing Council.  See also the Youth Court Bench Book.

Paragraph 4 of X (A Child) (No. 2) notes that X "had regularly engaged in antisocial-criminal behaviours, having been arrested on numerous occasions and charged with offences of violence, including assaulting a police officer; that she presents a risk to herself through acts of self-harm and engaging in violent and destructive behaviours towards others; that she had absconded from home and demonstrated a consistent disregard towards authorities, including the police and children's services; and that her mother (her father is dead) has demonstrated an inability to manage her aggressive and destructive behaviours and has failed to engage adequately with professionals in attempting to address these issues."

X (No. 2) also refers to X having attempted suicide "on a number of occasions" whilst at ZX.  Professional opinion is that "is therapy in some appropriate clinical setting" is required (para 34).  At para. 35 Sir James said - "If the fears of ZX are well-founded – and this, for the time being, is the basis upon which we must proceed – we should be left with little but the hope that the police would have had occasion to take X into custody before she was able to cause herself irreparable harm. Is that really the best the care system and the family justice system can achieve?"

X's case next came before Sir James at the end of July 2017 - X (A Child) (No. 3) - [2017] EWHC 2036 (Fam).  In this judgment Sir James points to the "central, dominating reality of this case" - On a large number of occasions while at ZX,  X has made determined attempts to commit suicide."  The need to place X in a suitable, secure clinical/hospital setting is overwhelming (para 22) but, as at 3rd August 2017, no placement of any kind is available for X when she leaves ZX.

This parlous state of affairs led to Sir James' comments at paras 36 to 41 where he noted the State's positive obligations under the European Convention on Human Rights Article 2.  Those obligations were the subject of the Rabone case in the Supreme Court - [2012] UKSC 2.

Sir James' trenchant remarks at paras 37 to 40 merit full quotation:

37  "What this case demonstrates, as if further demonstration is still required of what is a well-known scandal, is the disgraceful and utterly shaming lack of proper provision in this country of the clinical, residential and other support services so desperately needed by the increasing numbers of children and young people afflicted with the same kind of difficulties as X is burdened with. We are, even in these times of austerity, one of the richest countries in the world. Our children and young people are
our future. X is part of our future. It is a disgrace to any country with pretensions to civilisation, compassion and, dare one say it, basic human decency, that a judge in 2017 should be faced with the problems thrown up by this case and should have to express himself in such terms.

38  X is, amongst all her woes, a young person convicted in the Youth Court and a prisoner of the State. As long ago as 1910, a Home Secretary, speaking in the House of Commons, asserted that “The mood and temper of the public in regard to the treatment of crime and criminals is one of the most unfailing tests of the civilisation of any country.” In modern times the principle has expanded, so that, as is often said,“One of the measures of a civilised society is how well it looks after the most vulnerable members of its society.” If this is the best we can do for X, and others in similar crisis, what right do we, what right do the system, our society and indeed the  State itself, have to call ourselves civilised? The honest answer to this question should make us all feel ashamed. For my own part , acutely conscious of my powerlessness –of my inability to do more for X – I feel shame and embarrassment; shame, as a human being, as a citizen and as an agent of the State, embarrassment as President of the Family Division, and, as such, Head of Family Justice, that I can do no more for X.

39  If, when in eleven days’ time she is released from ZX, we, the system, society, the State, are unable to provide X with the supportive and safe placement she so desperately needs, and if, in consequence,she is enabled to make another attempt on her life, then I can only say, with bleak emphasis: we will have blood on our hands.

40  My judicial duty, as with every judge in this country, is“to do right to all manner of people after the laws and usages of this realm.” There are occasions, and this is one, where doing “right” includes speaking truth to power. The entrance to the Old Bailey, the Central Criminal Court, admonishes those who enter to “Defend the Children of the Poor.” Is less required of the Family Court or of the Family Division of the High Court? I think not."

Copies of the judgment will be sent to the Chief Executive Officer of NHS England, to the Secretary of State for the Home Department, to the Secretary of State for Health, to the Secretary of State for Education and to the Secretary of State for Justice. 

It is to be hoped that this results in an appropriate placement for X. 

Update 5th August:

It is reported that placements for X have been found - Telegraph 4th August - "After Sir James's judgment beds were identified in three appropriate care settings, and on Friday evening the NHS said a placement would be made available before her release date."  

Update 7th August:

Re X (A Child) (No. 4) 

Government December 2016 - Review of the Youth Justice System and Transform Justice - Review of Youth Justice System - a lost opportunity

Government - February 2017 - Youth Justice Update

The Annual Report for 2016-17 of the Youth Justice Board offers some statistics which are of considerable concern.  Page 13 looks at the key characteristics of children and young persons entering youth custody in the 2 years April 2014 to March 2016.  Of the 267 females involved, 41% had mental health concerns and 63% had concerns relating to suicide or self-harm.

A Halsbury's Law Exchange report - Women in prison: is the penal system fit for purpose? - produced by Felicity Gerry QC and Lyndon Harris seeks to highlight the need for change in the way we treat women throughout the criminal justice system.  "It is clear that both the justice and the penal systems are still failing to address the multiple and complex needs posed by women."  This discussion paper therefore aims to bring these important issues once again to the forefront and to strengthen the other voices also trying to pave the way for true reform in this area. It sets out the key facts emanating from the research, identifies keys areas where reforms could be made, and makes suggestions on how these changes might be implemented.

Howard League for Penal Reform

Prison Reform Trust

Youth Justice Board

Justice.Org - Youth Justice

Children England


It was interesting to note that Sir James Munby sat in Kendal.  As part of the government's cull of the court estate (BBC 11th February), the County Court and Magistrates' Court in Kendal closed at the end of June 2017 but some cases may be heard in Kendal Town Hall - Westmorland Gazette 12th July

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