Please see blog, ‘Strip search of children: a violation of children’s rights‘, by Dr Rhian Croke (14th December, 2022).
Please also find the Children’s Legal Centre Wales’ Response to report by the Children’s Commissioner for England on the Strip Search of Children (5th April, 2023).
We are very pleased to see – having submitted evidence with partner organisations across the UK to the UN Committee on the Rights of the Child – that the UN Committee, in the UK Concluding Observations 2023, has recommended:
Recommendation 30 a: Take legislative measures to explicitly prohibit, without exception, the use of…ii) strip searches on children.
Please see below Dr Rhian Croke’s transcription of the global webinar that we co-hosted with the Youth Justice Legal Centre: ‘Strip searching children – is it ever permissible?’
‘Strip search of children is a violation of children’s rights’
Dr Rhian Croke, 7th March 2023
Introduction
Hello and good afternoon everyone.
In my presentation today, I am going to touch on inadequate monitoring of strip search of children, how the practice of strip search is a violation of children’s rights and how in my own county context of Wales, all legislation and policy must have due regard to the United Nations Convention on the Rights of the Child (UNCRC), how the UK Government Police and Criminal Evidence Codes (PACE) must be reviewed and how it is consequently incumbent on the UK Government and devolved administrations to end the practice of strip searching children with urgency and find alternatives.
Devolution
To first give context to our international audience, the UK Government is the central governmental power with devolved administrations, with separate legislatures and executives in Northern Ireland, Scotland and Wales, each with its own unique devolution settlement, that has powers over a range of policy areas, although some powers are still reserved to the UK Government.
Lack of appropriate data, recording and oversight of the strip children
So, and has been touched on in earlier presentations there has been totally inadequate monitoring of the incidence of strip search of children across the UK. This practice has been happening, and been traumatising children, for decades, yet potentially due to children’s minority status, lack of power in communicating their concerns to authorities, it has remained relatively hidden and unchallenged. And yet, it is important to reiterate from a BBC File on 4 Freedom of Information Request, over 13, 000 children have been strip searched across the UK in the last 5 years and in 80% of cases, nothing illegal was found.
The Child Q case, other IOPC cases and the Children’s Commissioner for England’s own report on this issue, referred to earlier, have thankfully motivated the Home Office as part of the Annual Data requirement to request police forces, to provide information for 2021/22 on a voluntary basis. The information requested included details on the age, sex and ethnicity of people strip-searched by police in England and Wales in custody. The Home Office published their first report in November. But only 28 out of the 43 police forces provided data. Over 3, 000 children between 10–17 years were reported to have been strip searched. More than a 1/3 were black children.
Reporting to the UN Committee on the Rights of the Child
As part of the current UK reporting process to the UN Committee on the Rights of the Child, it has also become clear across NGO alternative reports, the inadequate monitoring and reporting on strip search of children is not just an English issue but also an issue of concern across all UK jurisdictions.
In Northern Ireland in 2021 and 2022, 53 strip searches of children took place, in almost all cases nothing was found. It was also confirmed that no data on strip searches of children was available prior to 2020.
In Scotland, a freedom of information request has reported that the police conducted over 3, 000 strip searches on children in police custody between 2017-21.
In Wales,183 children were strip searched in year ending March 2022, only 3 out of 4 police forces provided data to the Home Office Annual Data requirement, previously no data has been available on strip search of children in Wales.
I am however, pleased through my recent discussions with Police and Crime commissioners, Welsh Government and Wales Youth Justice Advisory Board, a commitment has been given to bring together data from across the 4 police forces of Wales to create a much clearer picture of current practice.
This is very much welcomed, however, up to this point, the lack of appropriate reporting on the incidence of strip search across the UK, demonstrates a clear lack of accountability to children. The police must be held to account to undertake mandatory reporting and collect disaggregated data in order that an assessment can be made of the impact on children’s rights.
Lack of alignment with duty to have regard to the UNCRC: Welsh context
I will now consider my own country context, Wales. For our international audience, Wales is one of the devolved regions of the United Kingdom, with a Welsh Government and a Welsh Parliament, however policing and criminal justice are still a reserved matter for the UK Government. Nevertheless, devolution has accelerated significant progress on policy and legislation relating to children’s rights and scope for innovation and divergence to the UK Government. Since 2004, youth justice policy has been underpinned by children’s rights and a Children First Approach. Furthermore, within the limits of the devolved settlement, the United Nations on the Convention on the Rights of the Child has been incorporated into domestic legislation. Welsh Government Ministers must have due regard to the UNCRC in the exercise of all of their functions, this includes the development of all policy and legislation.
The most recent Welsh Government Youth Justice Blueprint policy is underpinned by children’s rights. Welsh Government supports a National Trauma Informed Practice Framework to be adopted by all services, and their policy focuses on the prevention of Adverse Childhood Experiences. Strip search of children is undoubtedly an adverse childhood experience, and yes evidence does indicate that the trauma of strip searches interferes with positive brain development.
Our Welsh Government First Minister has recently announced that there are moves afoot to devolve youth justice to Wales, which will certainly help to change the tide on better embedding a children’s rights approach to youth justice. Strip search of children should not happen in any context, but this practice goes against the grain of policy and legislation on children’s rights that we are proud to embrace in Wales. I will now focus on the provisions of the UNCRC that are breached.
Strip search of children is a violation of children’s rights
First and foremost, no child should be subjected to cruel, inhuman or degrading treatment or punishment, however strip search as a practice most definitely falls into this category and is consequently a breach of Article 37a of the UNCRC. It can also be considered to be a breach of Article 40 of the UNCRC, that recognises that every child alleged as, accused of or recognised as having infringed the penal law is treated in a manner consistent with the promotion of the child’s sense of dignity and worth. It is also a breach of Article 19 of the UNCRC, as governments must take every measure to protect a child from all forms of physical and mental violence, injury or abuse, and yet it is quite clear that strip search as a practice also falls into this categorisation. It is furthermore a breach of Article 16 a child’s right not to be subjected to arbitrary or unlawful interference with his or her privacy.
Given the negative and traumatising impact of strip searching a child, this has an impact on a child’s Article 6 UNCRC right to survival and development and also a child’s right to the highest attainable standard of mental health (Article 24 of the UNCRC).
State parties must also take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of cruel, inhuman or degrading treatment. Strip search is cruel, inhuman and degrading, so after having inflicted it on a child, the state then must offer psychological reintegration and recovery, so why inflict it in the first place?
Also given the most recent evidence from the Home Office Annual Data requirement, that black boys were disproportionately strip searched, this demonstrates a clear breach of Article 2 of the UNCRC, and Section 149 of the Equality Act 2010. And because data has not been collected, we don’t yet know whether strip search is inflicted on children disproportionately in relation to the other protected characteristics. However, we do know from other research that children in conflict with the law are disproportionately children, who are care experienced, who are socially deprived, who have a diagnosis of neurodiversity, who will have already faced numerous adverse childhood experiences. So, it is highly likely that a strip search will be disproportionately inflicted on a child that already has experienced layers upon layers of trauma.
Furthermore, it is apparent that children are not fully aware of their UNCRC rights and/or not fully aware of their legal rights in relation to strip search, this is a breach of Article 42 of the UNCRC that makes clear that State parties must make the UNCRC known to adults and children. Also, in accordance with Article 12 of the UNCRC, children must be involved in all decision making that affects them, individually and collectively. Evidence collated as part of the Independent Child Sexual Abuse Inquiry has indicated that children who have experienced strip searches express feeling ‘humiliated, intimidated, paranoid, dirty, vulnerable, scared and violated’. Children remain the most exploited social group because they lack the same opportunities as adults to assert their own voice and interests and to demand accountability. Listening to children is a critical part of safeguarding them, but we also need to translate their evidence into policy and legislative reform.
Strip search of children is traumatising and degrading, and I will argue in a bit more detail shortly, that in the 21st century it is overwhelmingly, never in the best interests of a child to strip search them, it’s contrary to Article 3 of UNCRC and the best interest’s principle that runs through the UK Children’s Act and the National Police Chief’ Council own child-centred approach.
The UK PACE Legislation and Guidance must be reviewed
Firstly, I want to touch on the UK PACE Codes which are applicable to us in the Welsh context, given that policing is still a reserved matter, but as earlier mentioned there is always an appetite for innovation and divergence in relation to the promotion of children’s rights in Wales.
There have also been calls by the Council of Europe Commissioner for Human rights to undertake a children’s rights impact assessment on current UK guidance in relation to strip search of children. And rather helpfully, detailed research has already been conducted by the National Appropriate Adult network, which conducted a review of police search powers with a focus on police searches of children and vulnerable people and the current safeguards. The report compellingly illustrates that the UK PACE guidance leaves too much room for discretion by police officers and that strip searches are used by some police officers as a means of control and punishment. This is even more alarming given the broader context and recent evidence in relation to systemic racism and misogyny in police forces across the UK. The report also reinforces just how traumatic strip searches can be for children. It argues for a full governmental review of the PACE powers.
In summary this report communicates:
Use of alternative technologies
The report also helpfully considers the use of alternatives to strip searches such as the use of full body scanners, and metal wand detectors etc. So, this where I return to cases[1] that get presented that suggest it is in a child’s best interests to strip search a child because children may be for example concealing objects, such as weapons that put them at an immediate risk of self-harm, protection of life, risk to others or when a child may have drugs that could be a risk to them or the community.
I argue that, if there is reasonable suspicion of concealment of an illegal object, transparent and accountable safeguards must be in place, an appropriate adult should be present and alternative technologies must be available to prove without reasonable doubt that a child is actually concealing an object. This will negate the need for a traumatic and intrusive search, as well as eliminate the need for discretionary decision making by the police.
These technologies are already used in the youth secure estate and the UK Government publicly announced in January 2023, how successful the use of alternative technologies are in the adult secure estate. And I quote the UK Government:
‘Game-changing X-ray body scanners have foiled more than 28,000 attempts to smuggle drugs, phones and weapons behind bars.’
So, to reduce the traumatic impact of an intrusive strip search and the long term negative and damaging impact on any child (which has been quite clearly reported by Child Q and other children) why isn’t there investment in the use of these technologies across police forces across the UK?
If any harmful/illegal objects are found concealed in the child’s clothing using the alternative technology, the child should be shown this evidence, via the alternative technology, and then be encouraged to hand it over, and if required, to patiently ‘sit it out’ with the child, allow for the arrival of the trusted appropriate adult, and the child to voluntarily hand the object over.
The treatment of harmful objects in the PACE guidance, versus Class A drugs seems to be inconsistent. If any harmful /illegal objects are found internally through use of alternative technologies, the child should always be supported by a trauma informed medical practitioner in a medical setting and be treated as a child first and foremost and as a potential victim of exploitation.
To conclude, the UK Government and devolved administrations should comply with children’s rights, to ensure the use of alternatives are urgently invested in and rolled out and the inhuman and degrading practice of strip-searching children is ended once and for all.
[1] PD v Chief Constable of Merseyside Police [2015] EWCA Civ 114 http://www.bailii.org/ew/cases/EWCA/Civ/2015/114.html