Present at the meeting were Pam Simmons, Guardian for Children and Young People, South Australia (chair)
Aileen Ashford, Commissioner for Children, Tasmania
Howard Bath, Commissioner for Children and Young People, Northern Territory
Kerryn Boland, Guardian for Children, New South Wales (11th only)
Bernie Geary, Child Safety Commissioner, Victoria
Megan Mitchell, Commissioner for Children and Young People, New South Wales (11th only)
Alasdair Roy, Children and Young People Commissioner, Australian Capital Territory

The rights of young people in juvenile justice detention and the management of the use of psychotropic drugs for vulnerable children were among a wide range of topics discussed at the October meeting of the Australian Children’s Commissioners and Guardians (ACCG) in Adelaide this week.  The ACCG promotes children’s rights and participation and ensures the best interests of children are considered in public policy and program development across Australia.

The ACCG meeting communique, October 2012 is available in PDF.

For further information on the ACCG and the work of Children’s Commissioners and Guardians from across Australia, please contact the ACCG National Convenor, Elizabeth
Fraser, on 07 3211 6992.

For immediate access to reports as they are published, join our Twitter feed.

In 2006 the Office of the Guardian commenced regular visits to residents in the youth training centres. Advocates from the Office visit the residents in one unit in each of the centres each month and twice a year they conduct audits of records that relate to the safety of residents.1 Young people can also phone an advocate at other times.

Photograph by Magill Youth Training Centre resident, September 2009.

Despite the infrequency of visits, significant changes to conditions have resulted from the cooperative relationship between the Office and the Department. A major change is the construction of a new detention centre which will open in September and replace the sub-standard Magill centre. Other changes include the introduction of a complaints process and residents’ advisory groups, a shift in the emphasis of staff training from operations to relationship-based skills, shorter periods for residents in detention rooms and increased hours for the health services. Investigations of allegations of abuse are now concluded more promptly and access to independent advocacy has improved.

Recent media reporting of alleged assaults of staff at both centres, and the consequent investigation, will draw attention to a few specific incidents within a period of a few months but will not fairly represent the conditions or practices that increase or diminish the likelihood of violent incidents.

The Office’s regular monitoring and feedback on critical incidents shows that the vast majority of violent acts are not directed at staff, but at other residents or themselves (self-harm). The likelihood of violent incidents is greatly influenced by the communication skills of staff and by individualised intervention for the residents. The re-occurrence of violent outbursts depends on the staff’s response to the first incident. Where a resident understands that punishment (consequences) is proportional, not arbitrary, is reviewed by management and is open to appeal, it is less likely to be repeated. Debriefing with residents following an incident also helps them understand the impact of their behaviour and learn that there are other ways to deal with strong emotions. Violent incidents are reduced by attention to the social atmosphere and the emotional state of residents, and by consistency and fairness in the application of rules.

The Office’s tracking over six years of critical incidents indicates that:

The rate of violent incidents has risen over that time, but only at the Magill centre.²

The rate of incidents in any six month period can rise or fall significantly. This is usually as a result of one or two residents with very high needs, management inattention to resident and staff dynamics, or the absence of professional advice and intervention to help staff in responding to individual needs of residents.

The rate of physical restraint of residents as a response to incidents rose at a steeper rate than the number of incidents. This suggests that the impact of a new approach to behaviour management involving less use of physical restraint has yet to be realised. Overall, physical restraint was more likely to be used in a critical incident at the Cavan centre than at the Magill site.

In May 2009 Australia signed, but has not yet ratified, the Optional Protocol to the United Nations Convention Against Torture. The Optional Protocol allows for international inspection of all places of detention. In 2009, the then federal Attorney-General Robert McClelland noted that a ‘national preventative mechanism’ will be required so that all detention facilities are monitored by an independent body. Consultation with the states and territories on how this will be done has commenced.

1. As at 1 July 2012 the Office now combines visiting residents once a month with an audit of records.

2. It is possible that the auditing of records has resulted in improved recording of incidents so that part of the rise is attributable to this.

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Tracy Rafanelli

Charter Champions typically have a strong commitment to the rights of children and a belief in the value of a rights-based approach to ensuring their welfare and happiness.

Tracy Rafanelli, Program Co-ordinator at Magill Youth Training Centre^* is no different.  She says ‘Being a Charter Champion is an opportunity to promote the Charter within Magill and provide information and advice on the rights of children and young people in care.

‘I am a strong advocate for the rights of young people and I make sure Charter material is available and accessible to all young people and staff across the Centre.’

Champions come from all levels and roles within endorsing organisation.  Youth workers, supervisors, managers and chief executives are all represented in the ranks of the Champions registered with the Guardian’s Office.

‘By endorsing the Charter, our staff are committed to supporting the rights of young people and acting on their behalf if they identify a need. Young people in Magill now have a clearer understanding of their rights from a range of sources,’ says Tracy.

As a Charter Champion at Magill, Tracy has made sure that the Charter of Rights posters and information sheets for staff and young people are posted in all of the units and program room.   Water bottles and stress balls with rights messages have been provided to staff for distribution to young people in the units.  Boxes of the rights flash cards are in units and available to be used by staff during a young person’s induction.

Tracy has spoken to the Centre’s Training Officer to arrange a presentation about the Charter to be made to Centre staff in the near future.

‘Young people at Magill are encouraged to contribute to their future by better understanding their rights, responsibilities and their options for the future.

‘They are able to better seek out opportunities if they are not provided with them,’ says Tracy.

There are 47 agencies that have endorsed the Charter of Rights and the registration of 19 new Champions since December 2011 brings the total to 135.

The full range of materials available to endorsing agencies for distribution to young people in care is available on our website materials page.

* Tracy is temporarily Acting Supervisor at Restitution Services South with the Community Youth Justice Program.

All the Charter news is first on our Twitter feed.

The Report on the wellbeing of children and young people in care in South Australia – 2008-09 summarises the information in one place and makes the general conclusions available to a wider audience.  We will publish a written response from Families SA in the near future.

The inquiry found that the use of physical restraint has been falling since 2007 but that it could be reduced still further.  Restraint should only ever be used where the young person is at risk of immediate and serious harm to themselves or to another person nearby.  It is a ‘last resort’ intervention.  It should not be used because a young person is cheeky, refuses instructions, is shouting or throwing things around.  It should only ever be used by people trained to restrain safely.

The vast majority of residential staff are extraordinary people and are doing a great job under very difficult circumstances.  The failures identified in the inquiry report are systemic failures and should not reflect on the many dedicated workers and managers, nor on the young people who act out their distress. The failures were with inconsistent policies and practices, too many residents housed together, not enough on-the-job training and reflection on incidents, and not enough specialist support for young people with high needs.

There were different rates of use of restraint in different places and generally there was lower use in non-government houses.  This was a function of the size and design of the facility and higher investment in training and support. We could not answer the question about whether South Australia had higher rates of use than elsewhere because the data is too inconsistent to make any comparisons meaningful.  Instead the researchers could say that the rate of use could be reduced further.

To minimise the need to use physical force five recommendations were made.  In summary these were to replace the large residential units with smaller home-like houses of three or four young people, provide more on-the-job training and support for staff, change the regulations in the Family and Community Services Act 1972 so that restraint is never sanctioned for non-compliance, have specialist advice more readily available for children with the highest needs and have more rigorous external monitoring so that patterns are picked up early.

So much goes well in our residential care sector and we learn as much from what works well – see our report What works best in residential care – as what doesn’t. We do though tend to review things that we are concerned about and that we want to do better at.  As one young interviewee said, ‘I know it takes a lot out of them emotionally,’ referring to youth workers.  Compassion and understanding is a great place to start.

Using force to hold, immobilise or move a child who is in danger can be a normal protective response.  Pushing, pulling and lifting may be necessary to protect the child or others nearby from immediate and serious harm.

I have just completed an inquiry into the use of physical restraint of children in South Australian residential facilities.  Residential facilities for children and young people in state care are run by government and non-government organisations.  Children stay for periods of a few days to a month.

Included in the inquiry were the youth training centres at Magill and Cavan.

I started the inquiry because we had heard from some young residents and staff that restraint was used often and children were suffering injuries as a result of being restrained.

In other countries children and young people have died in schools and residential facilities from asphyxiation as a result of physical restraint. Some methods of restraint are very dangerous, particularly when they involve neck holds, obstruction of the nose or mouth, or holding a child face down on the ground.

Thankfully, we did not hear of any incidents of children dying recently in children’s services in Australia as a result of a physical restraint. However injuries were confirmed, reinforcing the evidence that restraining a child can be dangerous.

Restraint also has a considerable psychological effect on both the child and the staff involved.

We found that the use of restraint is decreasing and awareness of its dangers is rising.

Nevertheless restraint was not uncommon and was sometimes used inappropriately, such as when a young person refused repeatedly to comply with an instruction and emotion was high.

Restraint is more common in the facilities which accommodate higher numbers of children; not because the staff are any less skilled than others but because it is so difficult to keep everyone safe in a home with ten young people compared to four. Some young people were restrained often and undoubtedly had extremely challenging behaviour.

Fortunately, the background research and findings make us confident that we can make all children’s residences safer.

First, we would have no more than four young people in any one house, maybe up to six in some circumstances.  Second, we would have a consistent positive approach to bad behaviour, and restraint would never be sanctioned for non-compliance or punishment.

Third, care staff would be well-trained and well-supported to act professionally, warmly and calmly.

Fourth, specialist advice would be provided for the care of children with extremely challenging behaviour and a review of all incidents would be done routinely.  And fifth, there would be rigorous external monitoring of use of restraint so that patterns could be picked up early.

The inquiry found that there are inconsistent procedures and practice in children’s residential facilities and a number of situations in which it was unclear how staff should manage difficult behaviour.   For example, plucking children from harm’s way is easy to defend as necessary but is it right to haul  a 14 year old boy out of bed on a third attempt to get him to school?  And is it right to immobilise with an arm hold a distressed 13 year old girl who is lashing out at anyone who comes near her?

It is these types of difficult situations that residential care workers routinely face, and they have to decide whether or not and when restraint is required.

Residential staff want the best for children in their care.  They need our support and government’s commitment to achieve this.

Within the next few years I hope to see the larger residential facilities replaced with home-like residences, specialist advice for children with high need and consistent guidance to staff on dealing positively with problem behaviour.

[sidebar - Numbers add up to cause concern]

• On an average day in SA there are 345 children and young people in some form of residential care, including those in secure custody.
• Over a 27 month period (Jan 2007 – March 2009) there were 19 confirmed cases of injury of children in residential care as a result of physical restraint.
• Most of those restrained are male.
• Many residents will never experience a restraint but some are repeatedly restrained, usually over a short period of time.
• Residential facilities for children and young people in state care are run by government and non-government organisations and children stay for periods of a few days to a few years.
• In the past decade in Australia there have been incidents of serious injury of children in formal settings which have triggered inquiries, such as a 2006 WA Ombudsman’s investigation, a 2007 review by the WA Inspector of Custodial Services and a 2001 NSW Community Services Commission review.

Published in The Advertiser 13 January 2010

Photographer and tutor Jeremy Watson said the images, produced after only a few hours of tuition and practice, were as good as those produced by some of his other students over many days and weeks.

‘We started out by getting the young people to pick out a couple of photos from a collection I brought and asking them to say why they had picked them and how they made them feel.

‘From the start the interest and enthusiasm were great.’

Very soon the discussion progressed to the genres of portraiture, landscape and close- up and then onto mastering the controls of the digital cameras newly purchased for the project.

‘After shooting we brought all the kids back and they had the chance to look at and evaluate their work on the monitor.’

In the words of some of the young people involved:

Taking pictures, it was fun.

I learnt how to hold steady the camera and how to use macro.

It’s not always about a front on photo, you can take them in all different ways.

It felt like we had freedom and fun with the photos.

I learnt how you can find good photos anywhere.

Program Coordinator at Magill, Julie Wright, said that it was great to be able to introduce a new activity for the residents and one which was so interesting and accessible to all of them.

‘Everything went off without a hitch, and since we bought the cameras staff are finding other ways to use them as part of unit activity and to document events.’

At the end of Child Protection Week, a photo exhibition of prints of selected pictures was staged for all residents, some staff and guests from the Office of the Guardian.

Viewers were very impressed by the originality and technical quality of the images produced by the young photographers while the residents were enthusiastic.

‘Now that it has gone so well’, says Julie, ‘we’ll be trying to organise more photography activities in the future and we are already looking for opportunities for some residents who’ve shown a real interest to continue their photography when they leave Magill.’

[link to collage of Magill photo expo images]

Many will spend their nights on a mattress on a single wooden bunk in a 2m x 3m cell off a narrow corridor, unrelieved by a picture on the wall or a desk or a chair.

The toilets are down another corridor. Taps leak, tiles are broken and the cut-off doors afford no privacy. The windows are rendered opaque by grime, thick bars and wire mesh.

This tired and threadbare institution sabotages the efforts of staff to provide a safe and positive environment. It sends the clear message to staff and young residents alike that they are worthy of nothing better, seriously undermining the work of rehabilitation.

This decision is poor economics. For each of these young people we allow to graduate into a life of crime the cost to policing, the justice system and prisons is many times over the cost of rehabilitation.

It leaves South Australians in breach of international rules to provide ‘facilities and services that meet all the requirements of health and human dignity’ for juvenile offenders.

But most of all it is profoundly unkind and uncaring to some of our most vulnerable young people. I challenge any Minister responsible for this budget to spend an hour or two with the children in Magill and not feel deeply ashamed.

Pam Simmons

Guardian

Published in The Advertiser 8 June 2009.

Pam Simmons Guardian

With news reports of youth gangs and Operation Mandrake you could be forgiven for thinking that youth crime is on the increase. It is not. The trend is downwards. Over a ten year period to 2005 the fall in police apprehensions was 39 per cent. You could be forgiven for believing that young people who commit offences will do so again. Most do not.The implications are clear. Instead of addressing the problems some groups of young people face we would be adding to them by bringing them into the youth justice system for first and minor offences.

Most young people in South Australia are never in trouble with the police. In 2005, only 0.5 per cent of young people aged 10 to 17 years were apprehended by police. More than half of these did not warrant a court appearance.

For the most part, we have long accepted that we would treat young people as a special category when it comes to criminal justice in recognition of their underdeveloped moral reasoning.

Indeed it was South Australia that led the way in this country with the Children’s Act aged 10 to 13 are presumed to not be fully capable of understanding their actions unless a court can prove otherwise.

There is growing evidence that delays in moral reasoning will continue in to your early 20s and some jurisdictions have extended the principle of different treatment accordingly.

In SA there is a separate Court. The steadily falling youth crime rate is testament to a mostly good youth justice system.

That is why the recent proposals to change legislation so that young offenders are treated more harshly, including defining the offences when juveniles will face the adult court system, are so worrying. They are abrupt reactions to problems that have been with us for a long time and which, largely, we have handled sensibly.

We do well at steering first time offenders away from their second or third offence with crime prevention strategies, and cautions or family conferences following police apprehension. What we don’t want to do now is to counteract this success by widening the channel into the criminal justice system. Introducing anti-social behaviour orders, public shaming and mandatory sentencing could do just that.

Give someone a label, especially a young person, and they will live up to it. Becoming known in the neighbourhood as an “offender” or a “hoon” sticks hard and fast.

In the UK having an “Asbo” or anti-social behaviour order has become something of a badge of honour. Almost half the Asbos in the UK are breached at least once. A highly disproportionate number are imposed on black or Asian young people and the BritishInstitute for Brain Injured Children reported that 35 per cent of the orders were imposed on young people with a disability such as Tourette syndrome, autism or Aspergers syndrome.

The more vexing problem is how to stop that small minority, around 8 per cent, who persist in offending. Out of anger, it is tempting to punish and punish again. If your goal is to stop further crime however then brutalising young offenders, or any offenders, will defeat this.

Most repeat offenders are familiar with brutal environments and have experienced rejection, isolation, failure and cruelty most of their lives. Imprisonment can be a badge of honour, too, among some groups.

As many as 60 per cent of incarcerated young people are reported to be at risk of significant mental health problems.

There is little sympathy for young people who commit crime but it is not sympathy they need. We could instead offer, as other states and countries do, medium or low security facilities that focus on re-integration to the community rather than punishment.

We could ensure that our programs in detention centres deal with substance use, mental illness, post-abuse trauma and learning difficulties. We could introduce sentencing conferences that bring the young person’s family and community into the decisions about consequences and addressing causes of re-offending.

There are many effective alternatives to ongoing imprisonment. If we had tried these first, the call for longer imprisonment may be acceptable.

We have not and it is not.

Pam Simmons

Guardian

(First published in The Advertiser 23 March 2007.)