The Pains and Gains of COVID-19 – Challenges to Child First Justice in the Pandemic

Abstract

The global COVID-19 pandemic has particularly affected justice-involved children. Youth justice policy changes and innovations have assisted communication and engagement with these vulnerable children during unprecedented times, while attempting to limit risks of contagion and criminalisation – all central tenets of the ‘Child First’ guiding principle for the Youth Justice System of England and Wales. While some changes have enhanced the experiences of some justice-involved children (gains), others have disproportionately disadvantaged justice-involved children in court, community and custody contexts (pains), increasing criminalisation, disengagement and anxiety. These pains of COVID-19 have effectively eroded the rights of this already-vulnerable group of children.

Introduction

Just over a century since the outbreak of Spanish flu in 1918, which claimed at least 40 million lives (Pitt, 2018), the world is challenged by another global pandemic – COVID-19. The United Kingdom has been hard hit by the COVID-19 pandemic, which has, up to December 2021 seen over 10 million people test positive, almost 600,000 resultant hospital admissions and towards 168,000 deaths (with COVID-19 on the death certificate; UK Government, 2021). Across all policy areas, significant changes have been made for public safety and youth justice is no exception. Children in the Youth Justice System (YJS) are already among the most vulnerable in society, likely to have experienced significant adverse childhood experiences like abuse and neglect, on top of structural disadvantages like child poverty (Yates, 2010). Research has shown that they are doubly disadvantaged by becoming enmeshed in an iatrogenic inherently damaging system, adding criminalisation to their already-significant difficulties (McAra and McVie, 2007; Haines and Case, 2015). Recent policy directives in England and Wales from the Youth Justice Board ¹ (YJB) have emphasised that children should be treated as children first, privileging their child status over any offender-related identity (a defining aspect of the ‘Child First’ justice paradigm, hereafter referred to as ‘Child First’; YJB, 2021a). Central to Child First justice is a series of underlying evidence-based practice principles (Case and Browning, 2021) which have been significantly challenged by COVID-19: seeing children as children, developing a prosocial identity for positive child outcomes, collaborating with children, promoting diversion (YJB, 2021a). The Child First paradigm is underpinned by the ‘Child Friendly Justice’ recommendations of several prominent international children’s rights instruments, focusing primarily on protection, provision and participation for children in youth justice systems (Goldson, 2014; see also Case, 2021).

The Committee on the Rights of the Child (The Committee) foresaw that both COVID-19 and measures put in place to mitigate its effects would create new safeguarding risks and exacerbate already existent ones (United Nations (UN), 2020). This acknowledges that all children will have been adversely affected – vulnerable for their child status. Global action included widespread school closures and ‘stay at home’ orders which severely hampered their right to leisure and play possibilities, especially for those without outside space. Children reported serious difficulties in maintaining friendships during lockdown, vital for social development (Lundy et al., 2021). The Committee emphasised that ‘all decisions and actions concerning children must be guided by the principle of the best interests of the child, and children’s rights to life, survival, and development, and to be heard’ (UN, 2020: 2). UNICEF research has shown that the pandemic has caused major disruption to youth justice processes worldwide, severely affecting some children’s access to justice (UNICEF, 2021). However, the same research also highlighted innovations which have improved the plight of children involved the justice system, including that 11,600 children across 37 countries have been released from custody directly through pandemic-mitigating policies (UNICEF, 2021). Our contention is that children involved in the justice system in England and Wales (in common with elsewhere, cf. Lynch and Kilkelly, 2021) are additionally damaged above normally vulnerable children through ill-thought-out responses (both general- and justice-related) to the COVID-19 pandemic creating triple disadvantage and effectively foregrounding their offender status, in clear conflict with Child First justice.

This article explores policy and legislative developments concerning the COVID-19 pandemic in the YJS of England and Wales within a Child First context, analysing pains and gains of COVID-19. In what ways have children involved in the justice system benefitted from innovative thinking borne of necessity (gains of COVID-19); and how, through their triple disadvantage, have they been disproportionately disadvantaged, fostering disengagement from support processes and exacerbating potential harm (pains of COVID-19)? We identify erosions or negations of children’s rights as detailed in the United Nations Convention on the Rights of the Child (UNCRC), to which the United Kingdom is a signatory State, considering those arising from the pandemic itself (some of which are common to all children), but particularly concentrating on those caused (or exacerbated) by poor policy and implementation within youth justice specifically. For this analysis, Sykes’ (1958) ‘Pains of imprisonment’ conceptualisation will be repurposed, expanding Bateman’s (2020) application to the effects of COVID-19 on children in custody to encompass children at every stage of the YJS, from prevention to custody and resettlement, using it to measure harms from COVID-19 (and resultant policies) on this vulnerable group. After looking at the effects on courts, attention will turn to two specific aspects of the YJS: community contact and custody; applying to both subthemes of innovation, contact, access, safeguarding, engagement and children’s rights; all considered through the overarching lens of Child First justice.

Child First Justice

The ‘Youth Justice Review’ conducted by Charlie Taylor in 2016 recommended ‘a new system in which young people are treated as children first and offenders second’ (Taylor, 2016: 48). Thereafter, following Taylor’s appointment as Chair, YJB for England and Wales adopted the ‘Child First’ principle as their central strategic objective. Similarly, Child First strategic developments were developed in related policy areas, including the following:

• Policing – The National Police Chiefs’ Council (NPCC) ‘Child Centred Policing’ national strategy document stated that ‘It is crucial that in all encounters with the police those below the age of 18 should be treated as children first’ (NPCC, 2015: 9).

• Courts – The Sentencing Council’s guidelines established that for children ‘the approach to sentencing should be individualistic and focused on the child or young person, as opposed to offence focused’ (Sentencing Council, 2017: 4).

The centrality of Child First within national youth justice policy or strategy was reinforced in the YJB Business Plan 2021–2022, which detailed the vision for ‘A Child First youth justice system’ (YJB, 2021a: 2) and prioritised in the Vision Statement of the YJB Strategic Plan 2021–2024, which commits to Child First as the ‘strategic approach and central guiding principle’ (YJB, 2021b: 3). The Plan operationalises Child First into four inter-related ‘tenets’ (YJB, 2021b: 10–11), themselves an amalgamation of key features of the Positive Youth Justice ² model (Haines and Case, 2015) and Constructive Resettlement ³ (Hazel and Bateman, 2021; Hazel et al., 2017):

1. Seeing children as children. Prioritise children’s best interests, recognising their needs, capacities, rights and potential. All work is child-focused, developmentally informed, acknowledges structural barriers and meets responsibilities towards children.

2. Develop prosocial identity for positive child outcomes. Promote children’s individual strengths and capacities to develop their prosocial identity for sustainable desistance, leading to safer communities or fewer victims. All work is constructive and future-focused, built on supportive relationships empowering children to fulfil their potential and contribute positively to society.

3. Collaboration with children. Encourage children’s active participation, engagement and wider social inclusion. All work is a meaningful collaboration with children or their carers.

4. Promote diversion. Promote a childhood removed from the justice system, using pre-emptive prevention, diversion and minimal intervention. All work minimises criminogenic stigma from system contact.

The YJB’s emphasis of Child First as the guiding principle for youth justice practice was originally articulated in 2019, providing a ‘framework for youth justice practice’ and the ‘minimum expectation for all agencies’ to ensure that positive outcomes for children align (MoJ/YJB, 2019: 3). These revised ‘national standards’ for practitioners are, therefore, ‘indicative of a clear distinction between the philosophy now espoused by the YJB [Child First] and that which informed the previous iteration of the standards [risk management]’ (Bateman, 2020: 4). The new expectations for Child First practice were consolidated in the YJB ‘Case Management Guidance’ for practitioners (currently under revision), which are separate guidance documents outlining how practitioners and managers should work with children at different stages of the YJS (YJB, 2019).

Initial COVID-19 Restrictions Within the YJS

As the United Kingdom entered the first national ‘lockdown’ on 23 March 2020 ⁴ (BBC, 2020), the Ministry of Justice (MoJ) ⁵ made several systemic restrictions, policy changes and support mechanisms designed to allow the criminal justice system (and therefore the YJS) to operate within the wider national ‘lockdown’ policies. These included suspension of all but ‘essential’ court activity (potentially devastating to children turning 18 years after their first court appearance, and thereafter being treated as adults; Harris and Goodfellow, 2021), suspension of all justice- and education-related inspections, suspension of all custody face-to-face visits and the introduction of a new early custody release scheme to reduce custody numbers (MoJ, 2020a, 2020b).

The YJB (along with the Youth Custody Service ⁶ ) further translated these into YJS-specific policies for children involved in the justice system in the community and custody and provided localised support mechanisms, giving YOTs guidance on everyday practice (YJB, 2020a, 2020b; for example, YOT workers were classed as ‘keyworkers’ to work outside the home (allowing them to maintain face-to-face contact with more vulnerable children), education for children in custody was replaced by ‘in-room’ activities and they were given additional phone credit or access to help mitigate isolation). The YJB committed to protecting children involved in the justice system, intending to advocate for them with the Government to ensure no disproportionate disadvantage either through the pandemic more generally, or national lockdown actions, both in the community and in custody, and in defending rights (Hampson, 2020). They pledged to reduce the number of children entering the system, actively identify children in custody eligible for early release, maximise use of bail (reducing custodial remand) and promote the YJB Resource Hub ⁷ to disseminate good pandemic-related practice (YJB, 2020b).

While the YJB (and Youth Custody Service (YCS)) no doubt had laudable intentions to protect children involved in the justice system, the realities have been more sobering, as existing disproportionate economic and social disadvantage has been exacerbated – also seen in other countries, as highlighted by the United Nations (UN, 2020). While the restrictions have catalysed innovative work throughout the sector (potentially representing gains of COVID-19), children have been disproportionately disadvantaged by the effects of isolation at a sensitive developmental point when they most require socialisation (Bateman, 2020). Therefore, children involved in the justice system, often socially excluded and disproportionately from the lower socio-economic echelons of society and enmeshed in a criminalising system, are triply disadvantaged, suffering the ‘pains of COVID-19’ (Bateman, 2020) far more than other children. This has elevated their ‘offending status’ over their ‘child status’, to the expense of fledgling Child First practice, and threatened their rights as children (UN, 1989).

In the YJS, the ‘pains and gains’ of lockdown experienced by children were partly catalysed by significant retrenchment of court activity, severely limiting (timely, consistent, reliable) access to justice for children, as most court activity was suspended in the initial lockdown. While indications were that ‘virtual courts’ (a lockdown-related innovation) would be developed to facilitate the swift resumption of trials, in reality this ambition has not been realised (House of Commons Justice Committee, 2020a). This exacerbated existing delays in children’s access to timely justice (‘justice delayed is justice denied’; Sleight, 2020) and access to potentially supportive interventions (e.g. Child First interventions prioritising positive outcomes, rather than criminalisation) that can result from court-based mechanisms of justice. It was not until in-person trials were recommenced in May 2020 that those awaiting trial could have their matters tabled. By the end of June 2020, the backlog of children awaiting court dates was 55% up on 2019 (HMIP, 2020a: 15). A concern particularly relevant to children awaiting trial is the difference made if they turn 18 years of age after the offence but before their first court appearance, as they protections afforded to children in the YJS being then sentenced as adults, with consequential increases in sentencing tariffs and longer rehabilitation periods before sentences are considered ‘spent’ for such purposes as job applications (Harris and Goodfellow, 2021). Children who might previously have begun sentences supervised by YOTs (and in some cases remaining with them due to vulnerability concerns) would begin with the adult-orientated probation service, with adult-centric sentences addressing child-centric behaviour.

Where remote hearings were facilitated by video link appearances, concerns have been raised regarding whether this adversely affects a child’s access to justice and a fair trial, as it could severely impair their ability to effectively participate in proceedings. This is exacerbated if the ‘innovative’ use of technology (paradoxically) delays court proceedings. Lack of access to a physically present lawyer could increase anxiety and reduce their understanding of (distant) non-verbal cues. This might increase the chances of children responding in a way which appears inappropriate, affecting fairness, potentially compounded by higher-than-average rates of learning and communication difficulties for children involved in the justice system (House of Commons Justice Committee, 2020b: 19).

The suspension of most court activity also prevents orders being returned to court for early revocation due to good progress, commonly used by YOTs to acknowledge and reward positive engagement and progress (a Child First objective). This not only prolongs children’s involvement with inherently damaging youth justice agencies (McAra and McVie, 2007), but is a delay to justice, effectively increasing criminalisation. This again impacts on time periods before which convictions can be considered ‘spent’ as children whose order is not revoked, when in pre-pandemic circumstances it would have been, will have to declare their criminal record for longer on application forms (potentially reducing their employability at a time when pandemic-related youth unemployment specifically is increasing problematic; ONS, 2020). These court-related delays to justice do more than simply disengage and potentially (further) criminalise the child, they risk contravening several elements of the UNCRC, notably prioritising children’s best interests (Article 3), avoiding of inhumane treatment (Article 37) and ensuring that children in juvenile justice systems are treated with dignity and respect (Article 40).

Taken together, continued delays in court proceedings, whether caused or exacerbated by lockdown measures, including failure to properly execute technological innovations (e.g. virtual courts), have coalesced to adversely affect children’s access to justice and their access to supportive interventions in the community (as will be discussed). These delays have served to disengage children and risk further criminalisation, threatening their rights in several key areas. Court-induced ‘pains’ of COVID-19 are tangible, whereas court-related ‘gains’ have been less evident or compelling.

The Pains and Gains of COVID-19 in the Community

Children involved in the justice system in the community face a range of challenges, exacerbated by COVID-19 and related policies. This risks effective outworking of emerging Child First practice by YOTs before it is properly embedded, threatening retrenchment to previous risk-led working and decision-making. Using this lens, the discussion now focuses on issues affecting these children in the community (voluntary or statutory interventions), in relation to contact with or access to them, benefits and risks of developing innovations to overcome difficulties like social distancing, arising safeguarding issues and potential effects of all this on their UNCRC rights (UN, 1989).

Children’s first contact with YOTs is generally through prevention programmes (preventing them becoming further justice-involved), then through measures to divert them formal court disposals to avoid criminalisation for low-level initial offending, and eventually court-ordered contact post-conviction (court orders) generally involving assessment, supervision and post-custody re-entry or resettlement, where the greatest likelihood of reoffending lies (MoJ, 2020c). The principle of ‘engagement’ with (also understood as belief in, motivation for, commitment to; avoiding definitions based on mere attendance) youth justice support services is central to Child First justice and effective pursuit and realisation of preventive, supervisory or protective and supportive aims in the community (cf. Case and Haines, 2015). YOTs adapted quickly and effectively to lockdown restrictions through innovative practice developments, but wider issues of system delay remain (see previous section), which fosters children’s disengagement from youth justice processes, also potentially resulting in loss of justice (Sleight, 2020) and increasing criminalisation (through process interruption or COVID-19-specific police action), all of which moves away from actualising Child First in practice.

Contact and access

Where children engage fully with YOT practitioners (e.g. regular contact, building supportive relationships; Case and Haines, 2015) and interventions (including participating meaningfully in design and delivery), youth justice in the community is far more likely to be successful (and Child First; Case and Haines, 2015). However, YOTs’ retraction to minimum statutory delivery (due to staff working from home and minimisation of face-to-face contact – see later) appears to have meant that in some areas prevention services – non-criminalising voluntary support or prosocial programmes to help children develop interests and skills to prevent offending in the future through the development of a prosocial identity – have been deprioritised or suspended (cf. Wrexham Youth Justice Service, 2020; Ealing Integrated Youth Service, 2020). Unfortunately, nationally it is currently impossible to compare since no inspection or YJB reports on COVID-19 practice even mention non-statutory work. This retraction might partly have been due to restrictions on activities, but the loss of this vital prevention work to stop children from ever entering the (criminogenic/iatrogenic) YJS could potentially reverse the trend of the past decade (as prevention has developed) of reducing first time entrants to the system (Ministry of Justice, 2021a). Potentially, the Child First tenet of prioritising diversion from contact with youth justice services could be better served by prevention being offered within non-criminal agencies like youth services, but cuts over the past decade have seen these contract to a fraction of their previous size, meaning they are unlikely to plug any gaps (YMCA, 2020).

On a statutory level, children involved in the justice system receiving court-ordered community disposals (or diversionary police outcomes, for example, Youth Conditional Cautions) are typically supervised by YOT practitioners. This practitioner–child relationship provides the keystone to effectiveness and truly Child First practice, as without it, children are less likely to engage meaningfully, and ultimately to desist from crime (Johns et al., 2017; Haines and Case, 2015). Those not engaging sufficiently with the YOT can be returned to court for re-sentencing, sometimes even risking custody. YOTs have made enthusiastic use of telephone contacts or video apps leading to many children keeping YOT appointments through these media (YJB, 2020c). Although this has facilitated YOTs to maintain appointments with children where this might otherwise not have been possible, negatively it might adversely affect children’s engagement ability should they find this kind of contact difficult, thereby increasing risk of further (or deeper) criminalisation negating Child First practice.

Innovation – Benefits and risks

The strictures of lockdown encouraged YOTs to rethink strategies. As the YJB Resource Hub shows, this resulted in innovative and creative work facilitating essential work to continue (YJB, 2020d), resulting in some gains of COVID-19 for children involved in the justice system. The inspection report on YOT activity during the pandemic particularly praised the use of such strategies as ‘walk and talk’, bike rides and allotments for contact between children and workers (HMIP, 2020a: 20). It is encouraging that the inspectorate saw these developments as positive, since such positive-focused activities hold real promise in the actualising of Child First justice into practice.

To ensure that Referral Orders ⁸ could continue, community panel meetings became virtual, facilitated through video conference, but this risks reducing the ability or opportunity for a child to make meaningful inputs into their own plan, losing the important Child First tenet of meaningful collaboration with children. Indeed, panel members have expressed concerns about the virtual platform, telling HMIP (2020a) that they ‘couldn’t really get a sense of the child and too much was lost in not being able to see the non-verbal communication and dynamics between children and their parents and carers’ (p. 20). Informal conversations with YOT staff showed that some children benefitted from contacts facilitated through video calls, seeming to prefer to ‘meeting’ workers virtually resulting in better engagement (a gain), possibly ushering in the new world of digital working as envisioned by Barn and Barn (2019). This was echoed in the inspection, which found that both children and their families reported virtual contact as ‘less intense and “scary”’ (HMIP, 2020a: 22). However, staff also acknowledged that others may have found this more challenging, with one YOT practitioner noting that some children became difficult to track down, assisted by uncooperative parents, thereby risking breach action (instigated at the behest of managers trying to straddle a risk-approach and newer Child First thinking). This is exacerbated by digital poverty, more in evidence with children involved in the justice system than generally (HMIP, 2020a). There are wider digital poverty effects in education, since being justice-involved was absent from the definitions of ‘vulnerability’ which allowed access to face-to-face education, after lockdown-enforced school closures (HMIP, 2020a). Lack of Internet access or technology hardware adds not only to the challenge of education access, but also to the ability of workers in making meaningful contact with children, potentially reducing this to merely ‘checking in’ rather than facilitating engaging work or building good relationships, again negating the development of Child First practice. If work with children involved in the justice system is to be truly digitalised, then issues of digital poverty must be addressed.

Safeguarding

YOTs take safeguarding responsibilities seriously, given that children involved in the justice system are more likely to have experienced abuse and neglect than the general population (Zettler, 2021), motivating workers to maintain face-to-face contact wherever necessary (despite risks to themselves; YJB, 2020c). However, the need for this may not always be evident since another potential unintended consequence of phone-based contact is reduced opportunity for children experiencing abuse at home to make disclosures to YOT staff, for fear of either being overheard, or through the necessity of using the parent’s handset (children sometimes find maintaining phone ownership difficult through loss, theft, or temptation to sell). This could increase vulnerability levels when family difficulties (a frequent feature for children involved in the justice system) are already exacerbated by enforced and unavoidable increased time within family households during lockdown. It is likely, therefore, that phone-only contact will impact the quality of relationships between workers and children, potentially risking engagement breakdown. Despite the heightened potential for mental health difficulties due to restrictive policies, access to agencies aimed at mitigating this became acute. Substance misuse and health appointments (including mental health) appeared to be facilitated entirely often through phone contact, raising significant concerns about effectiveness (cf Wrexham Youth Justice Service, 2020).

Children’s rights

COVID-19 restrictions not only impede Child First justice, but also, threaten rights of children more generally, as identified in the UNCRC (UN, 1989), with the lockdown requirement to ‘stay at home’ potentially constituting a breach of UNCRC Article 37 – deprivation of liberty. The various policy changes, especially considering safeguarding issues outlined earlier, also threaten the basic tenet of ‘best interests’ (Article 3), which surely cannot be maintained through depleted contact with support agencies (mental health, substance misuse – also threatens Article 24 regarding rights to healthcare), complete absence of prevention activity or virtual-only contact with YOTs. The right for a child’s voice to be heard and given ‘due weight’ (Article 12) is threatened by deficiencies within ‘innovative’ online systems, especially when used in decision-making (for instance, a Referral Order Panel). Article 28, a child’s right to education, is potentially restricted due to lack of alternatives during lockdown for children unable to access online learning through digital poverty; those not currently in education are unlikely to feature in mitigating actions from education authorities, increasing the likelihood of them slipping through the net. Delayed justice due to closed courts impacts on the outworking of Article 40, which stresses that children should ‘have the matter determined without delay’, recognising difficulties caused through time-lags between a child’s actions and legal processes. It is true that many of these rights are threatened for all children at this time, but the triple disadvantage for children involved in the justice system makes them much more vulnerable both to this erosion, and to poorer resultant outcomes.

The practical outworkings of pandemic-related policies also risk further disengaging and criminalising children in several ways, exacerbating this rights-threat. Lockdown could cause (or increase) difficulties in household relationships, recognised as potentially increasing child-to-parent violence (YJB, 2020e; cf. Condry and Miles, 2012). Tough lockdown rules on behaviour and association with others may be more difficult for children involved in the justice system to maintain (given the over-representation of such conditions as Attention Deficit Hyperactivity Disorder and Conduct Disorder; cf. Silva et al., 2014), raising the distinct possibility of disproportionate legal action against children already involved in the justice system for breaching COVID-19 rules by meeting friends or leaving their home to avoid conflict.

Therefore, while several exceptional measures have been put in place by the YJB (mainly in terms of communication and sharing of good practice), and YOTs’ creative adaptations, there still remain distinct and in-built disadvantages for children involved in the justice system in the community, increasing their likelihood of further criminalisation and decreasing safeguards which YOTs normally maintain so assiduously.

The Pains and Gains of COVID-19 in Custody

Fewer children are now detained in the secure estate ⁹ than at any point during the last 13 years, one of the ‘gains’ associated with the pandemic. These reductions have been taking place over the previous decade and further extended in 2020 and 2021. The secure estate population of children reduced by 239 (28%) to 613 in February 2021 compared with 12 months before (Youth Custody Service, 2021), ¹⁰ further dropping to 511 by September 2021 (MoJ, 2021b). However, these decreases are not attributable to the Government’s temporary early release scheme, since no child apparently met the criteria (MoJ, 2020d), ¹¹ in stark contrast to the other 37 countries which have found a way to facilitate this (UNICEF, 2021).

Contact and access

Contact with others is a basic human need, equivalent to food consumption or sleep. As Orben et al. (2020) explain, physical distancing is particularly harmful to teenagers who are at a unique developmental phase making socialising vital for brain development, identity construction and mental health. In the absence of face-to-face visits, it is therefore appropriate that children have been given increased phone credit and access to free helplines during the pandemic. Young Offender Institutions (YOIs) rightly increased telephone credit, but by varying amounts (from £5 to 20; HMIP, 2020b) creating differential access. For example, children were grateful for extra phone credits but realised it might not be enough for all children:

The worst part about being able to speak whenever you want, is that your credit goes . . . there’s people I know that have zero pound credit . . . I do feel sorry for them because like they don’t have family to support them . . . so they won’t be getting enough money sent in. (Children’s Commissioner, 2020: 9)

There is a strong case for extending best practice, including free phone and video calls, beyond the pandemic. For example, an inspection of Feltham YOI (February 2021) recommended that children/families should be actively supported in utilising video calls, which were ‘underused, constituting a missed opportunity to support children maintain contact with their family and friends’ (HMIP, 2021a: 5). Facilitating this requires a more flexible approach (HMIP, 2021b: 3). Digital interactions can mitigate lack of social contact for children in prison yet fully enabling video conferencing (so called ‘purple visits’) has been slow, partly because children find the enforced presence of staff inhibiting (HMIP, 2020b). However, consequential absence of familial support is, as one child has put it: ‘the hardest thing I’ve gone through’ (Children’s Commissioner, 2020: 8). Video calls cannot compensate for lost in-person visits, which were halted during the lockdowns, but their swifter introduction would have helped ease the impact on children. The Children’s Commissioner (2020: 8) noted that in Oakhill Secure Training Centre (STC), for example, available capacity for Skype visiting was not matched by plans to use it in practice.

Innovation – Benefits and risks

Amid heightened pains of imprisonment for children during the pandemic (Bateman, 2020), some institutions found innovative ways (‘gains’) to improve aspects of custody and mitigate the harshest pains of isolation, thus supporting children and strengthening links between health care, criminal justice and government agencies, with potential long-lasting benefits (Hewson et al., 2020). To relieve boredom for children spending extended time alone in cells, some institutions delivered additional in-cell activities. For example, Werrington, Cookham Wood, Feltham and Parc YOIs provided games consoles and DVD players, or made additional television channels available (Children’s Commissioner, 2020). An inspection of HMYOI Feltham A found health services generally good, with few clinic waiting lists, particularly the dental service (HMIP, 2021a). However, it also acknowledged its parlous state at the time of the previous inspection (July 2019), where outcomes for children were so poor that the urgent notification protocol was invoked.

Children at Feltham reported that being unlocked in smaller groups of four during the pandemic had been effective for accessing education and other activities (HMIP, 2020a). Inspectors found that small groups had improved the quality of relationships between children and staff, with more children than previously reporting feeling cared for (56% compared with 19% at the previous inspection) or encouraged to attend education (71% compared with 37%). Self-harm reduced dramatically with only five incidents recorded in the previous 6 months compared with 242 in the same period before the previous inspection (HMIP, 2021a: 3). However, some children thought that violence and bullying had not been dealt with effectively by staff prior to the pandemic, welcoming time away from others. Inspectors warned that ‘violence, bullying and intimidation’ have not disappeared, but manifested in different ways (HMIP, 2020a: 10). Despite decreases in violent incidents at HMYOI Feltham, one in five children still felt unsafe at the time of inspection. This was similar to a pre-pandemic inspection undertaken in 2019 ¹² and there was a ‘concerning rise in multi-perpetrator assaults as friction between different groups increased’ (HMIP, 2021a: 3).

Secure Children’s Homes (SCHs) comprise smaller institutions holding fewer children, with higher staff to child ratios, so the worst effects of the pandemic were possibly easier to mitigate. For example, an interim inspection of Adel Beck SCH found that the impact of the pandemic had been managed very well, retaining its ‘outstanding’ rating. Children had been ‘. . . very well supported through their initial periods of isolation and have continued to receive consistent, stable care throughout this challenging time’ (Ofsted, 2021: 1). Furthermore, children were found to have made ‘significant developmental progress’ (Ofsted, 2021: 1). In contrast, an unannounced joint inspection of Oakhill STC in September 2021 resulted in an urgent notification being issued (HMIP, 2021c). Children’s ‘very poor’ day-to-day experiences, including high levels of violence, use of force and single separation, were associated with pandemic-related low staffing levels and staff morale.

Safeguarding

HMPPS gave too little attention, especially initially, to distinct needs of children in custody, despite most meeting the definition of a vulnerable child (HM Chief Inspector of Prisons, 2021: 70). The Chief Inspector’s annual report (addressing YOIs and STCs) also noted how leaders in public sector YOIs had tried to meet the needs of children safely, but were undermined by national HMPPS decisions to treat children similarly to adult prisoners (HM Chief Inspector of Prisons, 2021).

Pandemic restrictions have exacerbated some safeguarding issues already existent through generally deleterious effects of imprisonment (Goldson, 2005). For example, the Justice Select Committee hearing found pandemic-related problems were insufficient to explain the neglect of long-standing issues at Rainsbrook STC negatively impacting the lives of children (UK Parliament, 2021), such as being locked in cells for over 23 hours daily. Senior staff were failing to safeguard children, indicating the need for substantial improvements in governance and accountability. The Committee proposed that Rainsbrook STC should be taken back ‘in house’, if promised improvements fail to materialise (UK Parliament, 2021).

Of course, children’s experience of prison during the pandemic has not been uniform, due in part to considerable differences in practice between institutions, identified in the Children’s Commissioner (2021) report. Notably, the pandemic has compounded underlying structural issues of unequal treatment of ethnic minority children in the secure estate, impacting the extent to which these children can exercise their rights and be safeguarded (Tsintsadze, 2021). Ethnic minority children have consistently reported discriminatory treatment and more negative perceptions of imprisonment than their white counterparts. The 2019–2020 Children in Custody report found that 42% of children surveyed reported experiencing victimisation and significantly increased likelihood of reporting verbal abuse or being or threatened/intimidated by staff (HMIP, 2021b). Children from minority ethnic backgrounds are also disproportionately likely to be subject to isolation in prison (Children’s Commissioner, 2015). The use of segregation in child custody was already widespread prior to the pandemic; one-third of children in prison spend time in isolation, prompting the Supreme Court to highlight the ‘well known’ risks of prolonged solitary confinement (longer than 15 days) as particularly harmful (R v Secretary of State for Justice, 2015), but exacerbated during the lockdowns (Children’s Commissioner, 2020). A challenge for the secure estate post-pandemic is to ensure children have more hours of constructive out-of-cell activity (HM Chief Inspector of Prisons, 2021: 70).

Children’s rights

During lockdown, children spent significantly more time locked up alone in cells (Children’s Commissioner, 2020). Isolation appeared effectively normalised for children in custody during COVID-19 through increased time in cells (over 23 hours per day) and little contact with others, mimicking solitary confinement (Hewson et al., 2020). Even short periods in segregation are associated with poor psychological outcomes, including anger, depression, anxiety, paranoia, psychosis and exacerbation of underlying mental illness (Shalev and Edgar, 2015). It is likely, therefore, that the mental health impact of the lockdown measures will persist beyond the measures themselves, also adversely affecting subsequent reintegration into society (UNCRC Article 40, Alliance for Youth Justice (AYJ), 2020; UN, 1989).

Children’s right to access education (UNCRC Articles 28 and 29, UN, 1989) is an area of acute concern in custody; with engagement in education central to the development of positive, trusting relationships, constructive interactions with adults and enhanced capacity for behaviour management (Prisoners’ Education Trust, 2016). Pre-pandemic regulations require that children receive a weekly minimum of 25–30 hours’ education, depending on the type of custodial provision (Houses of Parliament, 2016). While government has previously claimed to be putting education at ‘the heart of youth custody’ (Houses of Parliament, 2016: 1), it frequently falls short, being generic, un/disengaging, and isolationist (Case and Hazel, 2020); there continues to be a need for a stronger, more holistic, approach to education for children in custodial environments (Little, 2018, 2020).

Release on Temporary Licence (ROTL) ¹³ has been contentious for some time in its lack of use with children, despite clear benefits for resettlement planning and post-custody outcomes (Hazel and Hampson, 2015; Hazel and Liddle, 2013), potentially threatening children’s rights in custody (notably the principle of ‘best interests’ in Article 3; UN, 1989). It was concerning that reporting on ROTL was not even mentioned in the vast majority of inspections through the pandemic and reported as being entirely absent at Feltham A (HMIP, 2021a). While the use of ROTL has been at best faltering in the past, it seems to be a casualty of COVID-19 retrenchment.

Pandemic constraints have contributed to a custodial environment in which children’s health and well-being is threatened, further contributing to their ‘arrested development’ (Children’s Commissioner, 2020; Dmitrieva et al., 2012). It is unsurprising that YOIs and STCs were ill-equipped to meet the needs of incarcerated children, as they were already characterised by high levels of violence, low staff-child ratios and little meaningful time out of cells before the pandemic (Bateman, 2016; Taylor, 2016; Youth Custody Improvement Board, 2017).

There is an opportunity for a smaller, better resourced secure estate following the pandemic (Bateman, 2020), notably through further reducing the use of imprisonment for children in England and Wales to better align policy and practice with the UNCRC (AYJ, 2020; Harris and Goodfellow, 2021). Lessons can be learnt from institutions which successfully mitigated the harmful effects of lockdown. Relatedly, the Children’s Commissioner (2021) has called for the YCS to better understand the welfare needs of the children held in custody across the jurisdiction.

Into the Future . . . the Continuing Pains and Emerging Gains of COVID-19?

While the initial lockdown of Spring 2020 managed to address the initial spread of the virus, infection rates subsequently developed into a second wave, prompting further lockdowns across Europe (Buchholz, 2021) and demonstrating prematurity in the YJB’s 2020 summer ‘recovery plan’ (YJB, 2020f). A European ‘third wave’, despite widespread vaccine roll-outs, also indicates that the issues highlighted by the pandemic will not be quickly overcome (Elflein, 2021). Lessons have been learnt in the YJS from the first lockdown experience, reflected in changes to legislation and policy to mitigate the potentially iatrogenic, criminalising and disengaging effects of systemic restrictions and related delays to justice and breaches of children’s rights. Indeed, a thematic review of youth offending services (November 2020) concluded that following the onset of COVID-19, youth justice ‘leaders and managers at a local and partnership level responded quickly to the needs of children . . . [through] innovation, care and commitment’ (HMIP, 2020a: 7). Certain rules are no longer as restrictive – for example, there was not the same shutdown of courts and educational establishments during the second wave of lockdown (in)activity (Winter 2020-21). This helped avoid further delays to justice, circumventing potential disengagement and neglect of children through the removal of service provision and support. In this second wave lockdown, while ‘purple visits’ in custody potentially provided flexibility (particularly to professionals), face-to-face visits for incarcerated children were no longer proscribed, demonstrating understanding of the different needs of children (as opposed to adults, for whom visits were again curtailed). Furthermore, YOTs are now better equipped to extend work begun in the first lockdown, incorporating new innovations into practice, so community contact by video call can continue without hiatus (while the most vulnerable still receive face-to-face visits), and virtual methodologies for conducting such processes as Referral Order Panel meetings online can continue. The vaccine roll-out has also re-established increasing face-to-face work with vulnerable children, as YOT workers were early recipients. Potentially, these gains of COVID-19 can become part of the ‘new normal’ of youth justice working, encouraging more out-of-office working, encompassing creative methods epitomised by allotment-based appointments and ‘walk and talk’ contacts (HMIP, 2020a), which could boost YJB aims in actualising Child First youth justice into practice.

Not all innovative, supportive and mitigating measures have been pursued consistently or successful, however, with inadequate information technology (IT) particularly proving a significant barrier to effective engagement in terms of contact, assessment, relationship-building and access to education. While face-to-face education was quickly re-established in most SCHs and STCs, YOIs continued to fail their children by their slow action, exacerbating already-identified difficulties in addressing children’s access to sufficient educational provision (HMIP, 2020a). Video call contacts are now established practice within most YOTs and custodial institutions, but the relatively low take-up for this facility has not been adequately addressed, particularly among those children (not to mention YOTs and especially custodial establishments) with difficulties in IT access, indicative of a ‘digital divide’ that continues to exclude and disengage socially disadvantaged children in the YJS from appropriate levels of contact with staff and access to education (HMIP, 2020a: 25). With no clear plans for improving this, the potential of this facility for providing a real alternative to face-to-face visits, when these are not possible, could be missed. Finally, the inspection reports, while commenting that extra phone credit allowances given to children in custody are inexplicably uneven and unfair, did not take the opportunity to suggest that charges should be waived for this basic essential. Taken together, it seems that although the world is to some extent getting used to operating under COVID-19 restrictions, children involved in the justice system continue to be relatively poorly served and significantly disengaged by resultant policies and practice in England and Wales. The pandemic could be a catalyst for long overdue improvement, eradicating the worst systemic harms. However, to date, there has been a little appetite for the decisive action required to make changes to achieve this.

In terms of its impact on developing Child First justice (as the YJB’s ‘strategic approach and central guiding principle’), COVID-19 and related policy or practice developments have had a mixed effect, potentially damaging its fledgling acceptance across YJS agencies. The first tenet (seeing children as children) has been eroded through adult-focused justice actions being applied to children (especially through the lack of/delayed court action, causing children who reached the threshold of adulthood with no first court date in sight being tried eventually as adults and sentenced using adult sentencing guidelines), the increased impact of delays to justice on children (than adults) and through the side-lining of children’s rights such as ‘best interests’ forming the heart of policy in favour of expediency. However, drops in custody use throughout the pandemic is definitely beneficial, given long-standing concerns over the damage this causes, thereby forcing better consideration within sentencing (and remand decisions) of ‘best interests’.

The second tenet (developing a prosocial identity for positive child outcomes) emphasises the importance of relationships between YOT workers and children – some of the innovations from YOTs (like ‘walk and talk’) may have better facilitated deeper relationships, making it vital that new creative ways of working are not lost as ‘normal’ working practices are refound. Children who have appreciated greater use of technology in this field likewise may have felt more able to develop; however, the various reports to which we have referred identified an issue with digital poverty – not all children have adequate access (even if given hardware, they may have had no home Internet access), emphasising differential access to justice according to socio-economic status. This retraction from wider social inclusion also threatens tenet 3 (collaborating with children), as children who are less accessible (potentially the case when not seen in person) are likely to have reduced opportunities to fully contribute and be heard, illustrated by difficulties voiced concerning virtual Referral Order panels. It was unclear whether any court procedures for children were undertaken virtually as no information on this was centrally recorded, but it is difficult to imagine that children would feel more confident in speaking online and may well approach this in a detached game-playing manner, lacking reality.

The final tenet (promoting diversion) is a double-edged sword – reduced contact caused by lack of programmes for children not on statutory orders could potentially fit this tenet, as it represents less intervention. However, if prevention services steering children away from formal system contact were not there (potentially being run by non-criminal organisations, like youth services, and therefore not in any sense criminalising; but current funding issues make this unlikely in practice), it is possible that more children would be drawn into the formal YJS. Children on formal court-ordered contact being seen less frequently could also be seen similarly – contact reduction could be beneficial, unless it results in complex needs not sufficiently met, or insufficient time for supportive relationships to be built between child and YOT worker.

It therefore becomes even more important that the effects of COVID-19 process and practice changes are observed to see what is truly beneficial and worth keeping, and what damaging aspects need to fall away or be actively addressed as the pandemic subsides. Only then will it be clearer what have, in reality, been the pains and gains of COVID-19.

Author biographies

Dr Kathy Hampson is a lecturer in criminology at Aberystwyth University. After spending over a decade in youth justice practice, her research now focuses on youth justice systems, child-first youth justice and child custody and resettlement.

Professor Stephen Case is a criminologist in the Criminology, Sociology and Social Policy division at Loughborough University. His research focuses on the promotion of positive, ‘children first’, rights-based and anti-risk approaches to working with children in conflict with the law. Professor Case has conducted funded research for the Youth Justice Board, the Home Office, the Welsh Government, the ESRC, Nuffield and the Leverhulme Trust.

Ross Little is a senior lecturer in Criminology and Criminal Justice at De Montfort University. His research interests include pedagogy, prisons and power, education and learning in prison contexts, and youth justice systems. He is undertaking a PhD on creating trustworthy educational spaces in prison contexts. Prior to this he built experience in criminological research, youth work and youth justice training and development roles.