Children in Solitary Confinement Illegal and Wrong: Ombudsman

October 01, 2019 |

Children and young people in Victorian prisons and youth justice systems are being damaged rather than rehabilitated through excessive use of isolation and separation, Victorian Ombudsman Deborah Glass has found.

During her inspection of three Victorian facilities – Port Phillip prison, Malmsbury Youth Justice Precinct and Secure Welfare Services – earlier this year, Ms Glass found practices that were incompatible with local and international human rights laws.

Tabling her inspection report in the Victorian Parliament today, Ms Glass said: “Legislation and official procedures acknowledge that children and young people should be isolated only as a last resort and for the minimum time necessary.

“But we found the procedures do not translate into practice."

“The direct impact is that many of the practices in both our youth justice and prison systems are likely to be contrary to law, incompatible with Victoria’s human rights legislation, oppressive, discriminatory or simply, wrong.”

At the adult Port Phillip prison – where there were about 170 young people aged 18-24 at the time of the inspection – Ms Glass found “an alarming number of instances of prolonged solitary confinement.

“In many cases we reviewed, the justification for separation seemed questionable and punitive,” she said.

“Young people were often separated for weeks in circumstances where there appeared to be little or no ongoing risk of harm to others; victims were separated for the same time as perpetrators; sometimes for months; and good behaviour did not appear to result in less separation.”

At Malmsbury, there were about 13,000 lockdowns (when a child or young person is isolated in the interests of ‘security of the centre’) during a 12-month period, with about 40 per cent attributed to staff shortages.

Ms Glass said it was disturbing to see a disproportionate use of isolation on Aboriginal young people, given it had been known for decades that Aboriginal prisoners subjected to solitary confinement suffer “extreme anxiety”.

Of the three facilities inspected, only the ‘out of home’ care provided by Secure Welfare Services at its Ascot Vale and Maribyrnong campuses appeared to use seclusion as a last resort.

“Comparing the three facilities, we found a direct correlation between the use and length of isolation practices, and the extent to which a facility recognised the harm caused by them,”

“The scientific evidence is compelling that young people, until around 25 years old, are still developing physically, mentally, neurologically and socially. It is why solitary confinement on children and young people poses such a serious risk of long-term harm.”

Ms Glass has made 27 recommendations to the state government, including that it legislatively prohibit solitary confinement, and review how young people are managed in the corrections system with a view to moving them out of mainstream  Victorian prisons into a dedicated facility.

“It must be acknowledged that correctional facilities can be highly challenging and at times, dangerous places, both for detainees and staff."

“Children and young people can be irrational, volatile and unable to self-regulate, presenting behaviour that is more challenging and extreme than many adults."

“But it is time to look beyond the ‘tough on crime’ rhetoric to consider what will genuinely lead to safer communities and safer correctional facilities."

“We should ask ourselves: are we best served by a practice that promotes security over rehabilitation, and then provides neither?"

“Smarter investment in both facilities and people should deliver far better returns than strengthened perimeter fencing.”

Ms Glass conducted her inspection against the rigorous standards of the United Nations Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, known as OPCAT.

Australia ratified OPCAT in 2017 and postponed its obligation to establish a local inspection body for three years. In Victoria, this means the State Government will need to appoint its local inspection body or bodies by December 2020.

As part of her report tabled in Parliament, Ms Glass has recommended that her office, given its existing independence, jurisdiction and powers, be designated, supported by an Advisory Group of oversight bodies and civil society organisations.

In this investigation, she established and was greatly assisted by an Advisory Group including: the Public Advocate, the Commissioners for Children and Young People and for Aboriginal Children and Young People, Mental Health Complaints Commissioner, Health Complaints Commissioner, Victorian Equal Opportunity and Human Rights Commissioner, Jesuit Social Services, Human Rights Law Centre, Victorian Aboriginal Community Controlled Health Organisation, Victorian Aboriginal Legal Services, Disability Services Commissioner, RMIT University and the Independent Broad-based Anti-corruption Commission. In addition, Her Majesty’s Inspectorate of Prisons in the UK seconded his Lead Inspector for children and young people to assist the thematic inspection.

Read the report here: OPCAT in Victoria: A thematic investigation of practices related to solitary confinement of children and young people.

Facts and Figures

  • The Ombudsman’s inspection of Port Phillip prison, Malmsbury Youth Justice Precinct and Secure Welfare Services (Ascot Vale and Maribyrnong) occurred over a total of 12 days in March and April 2019.
  • Solitary confinement is when a person is isolated for 22 hours a day or more without meaningful human contact, as described in the United Nations’ Standard Minimum Rules for the Treatment of Prisoners (known as the Mandela rules).
  • The term ‘solitary confinement’ is not used in Victorian legislation. The practices in Victoria that may lead or amount to solitary confinement include ‘isolation’ (in youth justice), ‘seclusion’ (in secure welfare) and ‘separation’ (in prison).

Source: Victorian Ombudsman.

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