Transfers to local authority accommodation

Summary

  • Once a child (under 18) is charged, they must be bailed or detained by police.
  • If they are detained they must be transferred to local authority accommodation (unless it is ‘impracticable’) to do so, pending the next available court.
  • Both the police and local authorities have legal duties regarding transfers.
  • The law recognises the psyhcological damage that detention can do to a child and is designed to ensure that children are detained for the minimum time necessary, as per the UK's obligations under the UN Convention on the Rights of the Child (Article 37).
  • However, in large areas of England and Wales, these legal duties have been systematically ignored for many years. 

Resources

Please see our information for youth justice professionals for practical guidance on transferring children from police custody to local authority accomodation under PACE section 38(6).  


Contributing factors

In one sense, this is quite a simple issue. The law is the law - and police and local authorities must abide by it just as children are expected to. The primary factor behind this issue is simply a chronic lack of suitable local authorities accommodation (sometimes referred to as 'PACE Beds'). However, there are actually a wide range of potential contributing factors, which are summarised below.

Police

  • sometimes ask for secure when it is not justified in the legislation. It can be culturally/psychologically challenging for a police officer to transfer a child to a non-secure environment after having refused bail. Local authorities do not have an absolute duty to provide secure accommodation so this makes it less likelt that a transfer will occur
  • sometimes interpret “impracticable” in the legislation as impractical rather than impossible
  • are expected to interpret unclear primary legislation (the ‘risk of serious harm to the public' is only defined in PACE 1984 in relation to certain violent and sexual offences, though they could argue the gravity of a different offence met this threshold)
  • believe it will take a long time or be impossible to arrange because they have lost faith in local authority provision (and therfore in effect the law itself)
  • think that the accommodation provided will be too far away and not allow a proper rest period and therefore not be in the child’s best interests
  • are sometime frustrated with repeat offenders not being detained by courts
  • don’t approach other local authorities which may respond more positively (and then arrange for the home local authority to be billed)
  • don’t always produce the Certificate of Impracticability / Juvenile Detention and deliver to court, so courts are not informed of individual of systemic failures
  • lack clarity and trust around who is responsible for the child arriving at court. The law, YJB, and Police Approved Professional Practice say the responsibility for the child or young person passes from the police to the local authority. This transfer of responsibility includes transfer of the power to detain them and responsibility for ensuring that they appear at court. However, according to the IPCC, the police’s duty of care extends to the period after release from police custody and some local protocols say the child or young person remains technically in police custody and as such will not be allowed the leave the placement until their court appearance (except on health grounds)
  • interpret the legal exceptions to the transfer requirement (for example those arrested on a warrant) as suggesting that Parliament did not think police cells were that bad for a child
  • do not have satisfactory arrangements for monitoring/accountability.

Local authorities:

  • at the time PACE was developed and enacted had secure units, often attached to a non-secure children's home. Now there are only 15 secure children's homes for England and Wales, in which there are rarely more than two or three vacancies. Given referral/answer times of 2-3 hours and two-way travel time, this can make police/social workers judge that it is not in the best interests of a child to be transferred even where it is a legal requirement
  • don’t differentiate between refusal of bail and transfer (i.e. believe that if a child is refused bail they present a significant risk and must be kept locked up by police
  • faced with a request for a non-secure PACE bed undertake a risk assessment and conclude a secure bed is needed even when police don’t require it
  • feel unable to fund PACE accommodation constantly, just for occasional use
  • may use secure if (a) likely to abscond or (b) likely to injure self or others in other accommodation (a double test beyond the police test to use secure if 12+ and risk to public of serious harm) but haven’t built enough secure accommodation (whether out of lack of consideration,  choice having considered low demand and high cost, or pure financial limitations)
  • are not clear that they have a legal power to detain a child transferred under PACE
  • do not have satisfactory arrangements for monitoring/accountability.

Youth Offending Teams

  • should be involved from the start in identifying possible concerns about bail and liaising with police to offer bail information / support to avoid need for PACE transfer (according to YJB guidance). Where AAs are not YOT staff, there are not always effective, real-time lines of communication back to the YOT
  • should be involved / consulted when a PACE transfer is being enacted.

Appropriate adults

  • do not have sufficient awareness/understanding of children's right to a transfer
  • may not be present or otherwise involved at the point in time in which decisions about bail, detention and transfers are made
  • may not have effective lines of communication back to the Youth Offending Team

Courts

  • do not often call police to account in relation to transfers under.38(6) and certificates under s.38(7) or call Directors of Social Services to account under s.21(2)(b) Childrens Act. Where either police or LA has failed, the lack of transfer is unlawful and open to compensation. 

Local Safeguarding Children’s Boards

  • are not aware of the issue and do not have satisfactory arrangements for monitoring/accountability

Government: 

  • amended the Children Act 1989, via the Secure Accommodation Regulations 1991, in a way which made it more likely that children will be sent to secure accommodation. In practice, as secure accommodation is less common and the local authority duty to provide accommodation is only absolute in relation to non-secure, this is likely to decrease the number  transfers. The normal test for secure under Children Act 1989 s. 25 is "has a history of absconding AND if he does so he is likely to suffer significant harm; or is likely to injure self or others if in other accommodation". The 1991 regulations changed this when it is applied in the contect of s.38(6) to "likely to abscond from other accommodation; or likely to injure self or others if in other accommodation" - a much lower threshold.

Our actions

NAAN has: -  
  • Developed a detailed flow-chart of the complex legal framework to help appropriate adults ensure these children’s rights are met
  • Given expert witness testimony for judicial review of non-compliance
  • Been a key contributor as a member of the Home Office working group on local authority transfers, which developed a national concordat to improve compliance


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