My name is Shirley Johnson. I worked in the youth justice sector for a decade from the mid-1990’s to 2006, in a number of management roles. This period was a stark contrast to my earlier experiences as young residential social worker twenty years prior. In the early 1980’s I worked at the Kingslea Girls home for a two-year period. The residence was a haphazard mix of children and young people deemed to have care and containment needs: young offenders, victims of abuse and girls refusing to conform to society’s requirements, were jumbled in together in large ‘Jane Eyre’ type dormitories. In this era young people could be placed in these contained environments for petty crimes and remain ‘locked up’ for years, as there was no clear differentiation between offending and the ‘need for contained care’.
As an untrained and unqualified young woman I found myself faced with daily abuses of young people’s rights. From my perspective it appeared that well-meaning staff focused too much on delivering a regime of training that was to ensure the girls became ‘properly mannered’ and ‘suitably skilled in domestic matters’ and not enough on well-being, family restoration and/or education.
The objective as I saw it was to train the girls for domestic work in local stately homes and the ‘lucky few’ for marriage and life as useful and dutiful wives. Life for the girls was about hard physical work, strictly adhered-to routines and often severe and/or demeaning discipline (for example standing for hours facing a corner of a room for impolite behaviour, locked in cells for swearing at staff or scrubbing floors for hours on end for an untidy or unmade bed).
It seemed to me there was little accountability - the residence was a law unto itself and, provided the girls didn’t run away (which they frequently did), no one seemed to take much notice of what was going on. Typically ‘runaways’ were found in gang pads or on the boats (places where wants, such as alcohol and cigarettes, were met in exchange for sex), and they were returned to the residence where life would continue to trudge along towards unknown and often unplanned destinations.
I think it is important to note however, that practices within residences and prisons tend to be based on what is perceived to be ‘societal expectations’ of best practice at a point in time. What may be seen as abhorrent today may have been perceived as appropriate and furthermore beneficial in a former time; for example strapping or caning within schools.
Returning to take a senior role in a residential facility 20 years later accorded me the opportunity to witness a substantial improvement in residential practices as a result of overhauls in legislation and regulatory frameworks. I won't be taking the moral high-ground as a respondent, because in my lived experience, the issues surrounding human rights are complex, multi-layered and situational, and they change over time. There are few black and white situations. I would like to say that when I managed a youth offenders’ residence I was successful in ensuring young people’s rights were always upheld, but in truth, despite best intentions, I know I failed to consistently achieve this. Constantly, conflicting interests challenged good intent.
For example, a young person’s right to have the nature of their offending kept confidential and private vs the rights of others to be given sufficient information to maintain their personal safety. If a young man has been charged and sentenced for a violent rape, should female staff be informed of the nature of his offending? If a young man chooses to go to school once he has finished his sentence for selling class A drugs, does the school have a right to know about the nature of his offending?
In my opinion it is the translation of human rights from regulation, policy and procedure into practices and behaviours where rights are either reinforced or lost. For example approved restraint techniques designed to manage a young person who is acting out in a manner that could hurt him or herself and or others, are precise and staff members are carefully trained to perform the drills. However, what occurs during a struggle between a young person and staff members may not always reflect approved protocol. This may be for a number of reasons, for example: a) the young person is significantly larger and stronger than the two staff members and securing the approved restraint is unachievable; b) an exasperated or frightened staff member loses his/her cool and applies more pressure than is needed; or c) an alternative and unapproved restraint is used because in the heat of the moment the staff member forgets how to apply the approved restraint. Thus while the legislation is strongly rights-focused and the practice is well-intentioned, the outcome may be a significant infringement on rights (for example a young person is hurt during the restraint process).
As a secondary illustration - a young person within a residence has the right to make a complaint about treatment which he/she believes is inappropriate. It is a staff member’s responsibility to lodge the complaint and record it in a complaints register. It is not the staff member’s right to determine whether or not the young person’s complaint is valid or not, and as such whether or not it is logged. I am aware however this filtering process does occur and most prevalently if the youth lodges a complaint to the same person he/she is complaining about.
It is important to note however that young people are quite capable of making up complaints to get staff members (particularly those they don’t like) into trouble, and complaints can be made as a means to evade having to do tasks they don’t want to do - for example, morning chores. Young offenders are, after all, teenagers. As such, they exhibit the difficult, defiant and at times dangerous behaviours that typical teenagers exhibit, plus a range of other higher-risk behaviours that result from a disruptive nature/nurture mix.
In my opinion, it is the intentions underlying the actions which most frequently determine where things sit on the human-rights continuum, from the well-meaning to the malicious. For example, a ‘joke’ between a staff member and inmate may have the intent of sharing good humour or conversely have the intent of being offensive, albeit the insult is hidden beneath a cloak of ‘joking around’.
Few settings face daily ethical dilemmas of such magnitude as residential care. For example, the strip search. Clearly strip searching a young person appears to be a colossal infringement of their human rights. It is degrading and humiliating. However, when faced with the dilemma of a) having to safeguard the young person from harming him or herself, b) protecting the other young people and/or the staff, or c) mitigating the chance for the young person escaping and/or making contact with others outside the jail to threaten or harm members of our community, which rights are paramount - the rights of the individual or the rights of the collective?
Regulations state that young people should be accorded the right of privacy. Regulations also state that young people have the right to be kept ‘free from harm’. The balancing of these two rights is complicated. An interesting illustration is the existence and use of viewing-windows that provide staff viewing access into young people’s cells to complete regular safety and security checks. Some noteworthy ‘human rights’ questions arise from the existence of these windows. Should all cells have viewing windows? Where should they be positioned? Should they enable a full and unimpeded view of the entire cell? Should young people be able to get dressed or go to the toilet without a staff member being able to view them?
In contrast, consideration needs to be given to questions such as: if a young person wishes to hurt themselves and there are parts of his/her cell which are blocked from staff vision, does this not add an unacceptable level of risk? Is this a justifiable or an unacceptable level of risk? If he or she hung him/herself above the toilet would the community be outraged about the inadequacy of supervision or would the community judge this as an acceptable cost to ensure the right for privacy?
It is a gross infringement of human rights for a young offender to be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In my experience incidents of this type of behaviour were infrequent; although arguably through poor recruitment there were staff members who considered it not only their prerogative but also, through a distorted lens, their duty to punish prisoners through acts of cruelty and/or humiliation. This type of punitive approach, in my experience, served only to harden and exacerbate young offenders’ negative behaviours.
Building and maintaining a residential/prison culture based on principles of humanity, dignity and respect is challenging, particularly with challenges in attracting skilled and trained staff, and high staff turn-over. Lower-skilled staff typically find residential work with young offenders challenging and emotionally exhausting. Frequently I have observed newly appointed staff become distressed by the probing and provocation of young people interested in and/or amused by what might happen if they metaphorically ‘scratch off the scabs’ of their noticeable frailties. A challenge for less experienced or skilled staff was their ability to separate out the young person from the nature of his/her offending and/or their rebellious behaviours. For example a percentage of staff would find it impossible to see the young man beyond his title of sex offender, or murderer or rapist. They could not see a young man who had committed an act of rape; rather they would see a rapist who was a young person.
Further, it was critical that staff could understand an ‘outburst’ as a manifestation of a young person’s frustration and/or low skills, and not a deliberate personal attack. I have witnessed low-level incidents spiral into chaos with staff personalising a young person’s abusive behaviour and responding with hostility and rage or, alternatively and equally inappropriately, with upset and tears. In these situations there are no winners and all involved have rights trampled on.
As a Manager it was my responsibility to balance the rights of inmates/young people with the rights of staff. When staff members feel under attack and not supported, the custodial environment quickly moves into a type of ‘war zone’ with each side seeing the other as the enemy. Paying particular attention to the health and safety of all was of paramount importance to ensure rights were accorded a foothold and a focus.
An inmate’s loss of civic rights is a much-debated issue. Some argue that those who choose not to obey the laws of the land should forfeit their rights to participate in shaping those laws/or benefit from being a member of our society. Why should these people be given the democratic right to vote? Why should they have full access to health, education and training opportunities? Surely providing such privileges is counter-intuitive to giving a clear message that crime will be punished.
What I saw in real life was that isolation and seclusion of young people only serves to further marginalise them from a society from which they were already estranged. If a young person believes no one cares and they don’t belong, they have little to live for and few motivators to moderate their behaviour. In my experience, approaches based on building well-being, developing skills, fostering civic engagement and nurturing familial connections result in improved self-esteem, a greater sense of prospect, and promote a sense of connection with the wider community; all of which support an eventual positive future reintegration back into society.
It is a fundamental right that a young person should not be subjected to arbitrary interference with his or her privacy, family, home or correspondence. A challenge faced by residences in relation to familial connections, however, is the varying degrees of complicity with their family members’ crimes. For example, the father who smuggles drugs into his son in the Cadbury Caramello chocolate, (having replaced the caramel with cocaine) or the mother who visits, bringing her scrapbook of the son’s media coverage from his offending history. This being said, family visits are highly treasured, invaluable for the young person’s well-being and for the majority of the time proceed without incident.
It is a human right to have and express one’s own personal beliefs and convictions, and a right not to be discriminated against on the basis of their identity. This being said, society has norms that people will not express views or behave in a manner that negatively impacts on others. Gang affiliations within the residences are a classic example of this tension. While it is a young person’s right to belong to a gang and to affiliate with others of the same gang, it is not their right to intimidate or threaten others who do not share their convictions. Managing that balance and dealing with the consequences when there wasn’t balance was a persistent challenge.
Within youth justice residences young people have the right to attend school. This is, however, conditional on the teachers’ judgement whether or not the young person is “fit to learn”. A young person may not be in a fit state to learn because of ill health or because their behaviour is inappropriate for the classroom. The outcome of this perfectly reasonable approach, however, is that a percentage of young people struggling with mental health and/or behavioural management issues can be excluded.
While once again it is recognised that the rights of the group supersede the rights of the few, exclusion is a human rights issue. In my time this was partially mitigated through students being able to ‘access educational resources’ but in reality, those needing more teacher support often received the least. From what I remember, those with the skills and aptitude to do well were supported while those with the least skills were left to drift. This situation is further exacerbated in prisons where access to education, books, training and literacy-help becomes a privilege and not a right. I have observed over the years how access to literacy and language services, education and training provides residents/inmates with not only new skills but also access to the outside world. With improved self-confidence and self-belief it was surprising how quickly young people could move from being ‘victims of circumstance’ to drivers of their own destinies. This didn’t mean always making good choices but rather being aware there was an opportunity to make different choices.
Access to mental health services was and remains a critical issue for residential services and prisons. When I was Manager, we were asked to provide safe containment for young offenders with severe psychological/psychiatric conditions because there were no ‘secure’ mental health facilities. The outcome was that staff in the Youth Justice facility, who were not qualified to do this work, had to do the best they could within an environment that was not well suited, and with limited resources and supervision. While this partnership approach provided safe care it did not provide the level of psychological/psychiatric intervention these high-end young people needed. There was a constant worry that the ‘as good as it gets’ approach would end in tragedy. Not being able to access ‘fit for purpose’ mental health services is a human rights issue that needs addressing.
While NZ residences still, no doubt, have some way to travel to ensure young people’s rights are upheld, consistently and without discrimination, residences have moved a substantial way in the last twenty years. This being said, I am a strong proponent of the notion that if we are not actively moving forward we start to slip backwards as the world does not allow a position of stasis.
To conclude I would like to reiterate my beginning point that the issue of human rights is powerfully important, highly complex and requires constant retuning to ensure the changing socio-cultural needs of our young people are respected. As residences continue to develop best practice policy and protocols, and weave human rights into everyday rules, routines and behaviours, I believe we will begin to see a normative shift to the whiteness of the fifty shades of grey.
As an untrained and unqualified young woman I found myself faced with daily abuses of young people’s rights. From my perspective it appeared that well-meaning staff focused too much on delivering a regime of training that was to ensure the girls became ‘properly mannered’ and ‘suitably skilled in domestic matters’ and not enough on well-being, family restoration and/or education.
The objective as I saw it was to train the girls for domestic work in local stately homes and the ‘lucky few’ for marriage and life as useful and dutiful wives. Life for the girls was about hard physical work, strictly adhered-to routines and often severe and/or demeaning discipline (for example standing for hours facing a corner of a room for impolite behaviour, locked in cells for swearing at staff or scrubbing floors for hours on end for an untidy or unmade bed).
It seemed to me there was little accountability - the residence was a law unto itself and, provided the girls didn’t run away (which they frequently did), no one seemed to take much notice of what was going on. Typically ‘runaways’ were found in gang pads or on the boats (places where wants, such as alcohol and cigarettes, were met in exchange for sex), and they were returned to the residence where life would continue to trudge along towards unknown and often unplanned destinations.
I think it is important to note however, that practices within residences and prisons tend to be based on what is perceived to be ‘societal expectations’ of best practice at a point in time. What may be seen as abhorrent today may have been perceived as appropriate and furthermore beneficial in a former time; for example strapping or caning within schools.
Returning to take a senior role in a residential facility 20 years later accorded me the opportunity to witness a substantial improvement in residential practices as a result of overhauls in legislation and regulatory frameworks. I won't be taking the moral high-ground as a respondent, because in my lived experience, the issues surrounding human rights are complex, multi-layered and situational, and they change over time. There are few black and white situations. I would like to say that when I managed a youth offenders’ residence I was successful in ensuring young people’s rights were always upheld, but in truth, despite best intentions, I know I failed to consistently achieve this. Constantly, conflicting interests challenged good intent.
For example, a young person’s right to have the nature of their offending kept confidential and private vs the rights of others to be given sufficient information to maintain their personal safety. If a young man has been charged and sentenced for a violent rape, should female staff be informed of the nature of his offending? If a young man chooses to go to school once he has finished his sentence for selling class A drugs, does the school have a right to know about the nature of his offending?
In my opinion it is the translation of human rights from regulation, policy and procedure into practices and behaviours where rights are either reinforced or lost. For example approved restraint techniques designed to manage a young person who is acting out in a manner that could hurt him or herself and or others, are precise and staff members are carefully trained to perform the drills. However, what occurs during a struggle between a young person and staff members may not always reflect approved protocol. This may be for a number of reasons, for example: a) the young person is significantly larger and stronger than the two staff members and securing the approved restraint is unachievable; b) an exasperated or frightened staff member loses his/her cool and applies more pressure than is needed; or c) an alternative and unapproved restraint is used because in the heat of the moment the staff member forgets how to apply the approved restraint. Thus while the legislation is strongly rights-focused and the practice is well-intentioned, the outcome may be a significant infringement on rights (for example a young person is hurt during the restraint process).
As a secondary illustration - a young person within a residence has the right to make a complaint about treatment which he/she believes is inappropriate. It is a staff member’s responsibility to lodge the complaint and record it in a complaints register. It is not the staff member’s right to determine whether or not the young person’s complaint is valid or not, and as such whether or not it is logged. I am aware however this filtering process does occur and most prevalently if the youth lodges a complaint to the same person he/she is complaining about.
It is important to note however that young people are quite capable of making up complaints to get staff members (particularly those they don’t like) into trouble, and complaints can be made as a means to evade having to do tasks they don’t want to do - for example, morning chores. Young offenders are, after all, teenagers. As such, they exhibit the difficult, defiant and at times dangerous behaviours that typical teenagers exhibit, plus a range of other higher-risk behaviours that result from a disruptive nature/nurture mix.
In my opinion, it is the intentions underlying the actions which most frequently determine where things sit on the human-rights continuum, from the well-meaning to the malicious. For example, a ‘joke’ between a staff member and inmate may have the intent of sharing good humour or conversely have the intent of being offensive, albeit the insult is hidden beneath a cloak of ‘joking around’.
Few settings face daily ethical dilemmas of such magnitude as residential care. For example, the strip search. Clearly strip searching a young person appears to be a colossal infringement of their human rights. It is degrading and humiliating. However, when faced with the dilemma of a) having to safeguard the young person from harming him or herself, b) protecting the other young people and/or the staff, or c) mitigating the chance for the young person escaping and/or making contact with others outside the jail to threaten or harm members of our community, which rights are paramount - the rights of the individual or the rights of the collective?
Regulations state that young people should be accorded the right of privacy. Regulations also state that young people have the right to be kept ‘free from harm’. The balancing of these two rights is complicated. An interesting illustration is the existence and use of viewing-windows that provide staff viewing access into young people’s cells to complete regular safety and security checks. Some noteworthy ‘human rights’ questions arise from the existence of these windows. Should all cells have viewing windows? Where should they be positioned? Should they enable a full and unimpeded view of the entire cell? Should young people be able to get dressed or go to the toilet without a staff member being able to view them?
In contrast, consideration needs to be given to questions such as: if a young person wishes to hurt themselves and there are parts of his/her cell which are blocked from staff vision, does this not add an unacceptable level of risk? Is this a justifiable or an unacceptable level of risk? If he or she hung him/herself above the toilet would the community be outraged about the inadequacy of supervision or would the community judge this as an acceptable cost to ensure the right for privacy?
It is a gross infringement of human rights for a young offender to be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In my experience incidents of this type of behaviour were infrequent; although arguably through poor recruitment there were staff members who considered it not only their prerogative but also, through a distorted lens, their duty to punish prisoners through acts of cruelty and/or humiliation. This type of punitive approach, in my experience, served only to harden and exacerbate young offenders’ negative behaviours.
Building and maintaining a residential/prison culture based on principles of humanity, dignity and respect is challenging, particularly with challenges in attracting skilled and trained staff, and high staff turn-over. Lower-skilled staff typically find residential work with young offenders challenging and emotionally exhausting. Frequently I have observed newly appointed staff become distressed by the probing and provocation of young people interested in and/or amused by what might happen if they metaphorically ‘scratch off the scabs’ of their noticeable frailties. A challenge for less experienced or skilled staff was their ability to separate out the young person from the nature of his/her offending and/or their rebellious behaviours. For example a percentage of staff would find it impossible to see the young man beyond his title of sex offender, or murderer or rapist. They could not see a young man who had committed an act of rape; rather they would see a rapist who was a young person.
Further, it was critical that staff could understand an ‘outburst’ as a manifestation of a young person’s frustration and/or low skills, and not a deliberate personal attack. I have witnessed low-level incidents spiral into chaos with staff personalising a young person’s abusive behaviour and responding with hostility and rage or, alternatively and equally inappropriately, with upset and tears. In these situations there are no winners and all involved have rights trampled on.
As a Manager it was my responsibility to balance the rights of inmates/young people with the rights of staff. When staff members feel under attack and not supported, the custodial environment quickly moves into a type of ‘war zone’ with each side seeing the other as the enemy. Paying particular attention to the health and safety of all was of paramount importance to ensure rights were accorded a foothold and a focus.
An inmate’s loss of civic rights is a much-debated issue. Some argue that those who choose not to obey the laws of the land should forfeit their rights to participate in shaping those laws/or benefit from being a member of our society. Why should these people be given the democratic right to vote? Why should they have full access to health, education and training opportunities? Surely providing such privileges is counter-intuitive to giving a clear message that crime will be punished.
What I saw in real life was that isolation and seclusion of young people only serves to further marginalise them from a society from which they were already estranged. If a young person believes no one cares and they don’t belong, they have little to live for and few motivators to moderate their behaviour. In my experience, approaches based on building well-being, developing skills, fostering civic engagement and nurturing familial connections result in improved self-esteem, a greater sense of prospect, and promote a sense of connection with the wider community; all of which support an eventual positive future reintegration back into society.
It is a fundamental right that a young person should not be subjected to arbitrary interference with his or her privacy, family, home or correspondence. A challenge faced by residences in relation to familial connections, however, is the varying degrees of complicity with their family members’ crimes. For example, the father who smuggles drugs into his son in the Cadbury Caramello chocolate, (having replaced the caramel with cocaine) or the mother who visits, bringing her scrapbook of the son’s media coverage from his offending history. This being said, family visits are highly treasured, invaluable for the young person’s well-being and for the majority of the time proceed without incident.
It is a human right to have and express one’s own personal beliefs and convictions, and a right not to be discriminated against on the basis of their identity. This being said, society has norms that people will not express views or behave in a manner that negatively impacts on others. Gang affiliations within the residences are a classic example of this tension. While it is a young person’s right to belong to a gang and to affiliate with others of the same gang, it is not their right to intimidate or threaten others who do not share their convictions. Managing that balance and dealing with the consequences when there wasn’t balance was a persistent challenge.
Within youth justice residences young people have the right to attend school. This is, however, conditional on the teachers’ judgement whether or not the young person is “fit to learn”. A young person may not be in a fit state to learn because of ill health or because their behaviour is inappropriate for the classroom. The outcome of this perfectly reasonable approach, however, is that a percentage of young people struggling with mental health and/or behavioural management issues can be excluded.
While once again it is recognised that the rights of the group supersede the rights of the few, exclusion is a human rights issue. In my time this was partially mitigated through students being able to ‘access educational resources’ but in reality, those needing more teacher support often received the least. From what I remember, those with the skills and aptitude to do well were supported while those with the least skills were left to drift. This situation is further exacerbated in prisons where access to education, books, training and literacy-help becomes a privilege and not a right. I have observed over the years how access to literacy and language services, education and training provides residents/inmates with not only new skills but also access to the outside world. With improved self-confidence and self-belief it was surprising how quickly young people could move from being ‘victims of circumstance’ to drivers of their own destinies. This didn’t mean always making good choices but rather being aware there was an opportunity to make different choices.
Access to mental health services was and remains a critical issue for residential services and prisons. When I was Manager, we were asked to provide safe containment for young offenders with severe psychological/psychiatric conditions because there were no ‘secure’ mental health facilities. The outcome was that staff in the Youth Justice facility, who were not qualified to do this work, had to do the best they could within an environment that was not well suited, and with limited resources and supervision. While this partnership approach provided safe care it did not provide the level of psychological/psychiatric intervention these high-end young people needed. There was a constant worry that the ‘as good as it gets’ approach would end in tragedy. Not being able to access ‘fit for purpose’ mental health services is a human rights issue that needs addressing.
While NZ residences still, no doubt, have some way to travel to ensure young people’s rights are upheld, consistently and without discrimination, residences have moved a substantial way in the last twenty years. This being said, I am a strong proponent of the notion that if we are not actively moving forward we start to slip backwards as the world does not allow a position of stasis.
To conclude I would like to reiterate my beginning point that the issue of human rights is powerfully important, highly complex and requires constant retuning to ensure the changing socio-cultural needs of our young people are respected. As residences continue to develop best practice policy and protocols, and weave human rights into everyday rules, routines and behaviours, I believe we will begin to see a normative shift to the whiteness of the fifty shades of grey.