Powerlessness, indignity, isolation, frustration, confusion, humiliation and fear. These are the feelings children often describe about time spent in police custody, though they may conceal them from police with bravado.
The average human brain takes 25 years to develop. Yet at just ten, a child is criminally responsible and must make key decisions, such as whether or not to have legal advice.
Children in custody are disadvantaged by more than cognitive development. They are much more likely than other children to have poor mental health, a learning disability (up to 32% versus 4%), communication disorder (up to 90% versus 7%), be autistic (15% versus 1%), or have suffered a head injury with loss of consciousness for more than 20 minutes (18% versus 5%). Race, gender, abuse, neglect, trauma, exclusion, and ‘looked after’ status can also compound disadvantage.
Much of this is invisible unless actively looked for. Children detained regularly may ‘know the ropes’ while still being distressed and disadvantaged.
The Police and Criminal Evidence Act (PACE) requires police to involve AAs when detaining, or voluntarily interviewing, any child or ‘vulnerable person’ (defined in Code C 1.13(d)). Without one, proceeding with many processes would breach PACE, risking an unfair investigation and inadmissible evidence.
AAs safeguard a person’s interests, ensuring fair treatment, effective participation, understanding of rights, and the ability to exercise them. They support, advise and assist; observe and intervene; and assist communication. Importantly, they cannot give legal advice but can make sure a lawyer attends, even if a child has declined legal advice. The AA role covers the entire custody episode and can be complex and challenging.
Parents and trained appropriate adults
PACE prioritises parents as AAs (unless involved in the case), and many children will value someone familiar and trusted who understands them. Yet, in emotional circumstances, parents must interpret PACE, understand their role, and challenge police appropriately, while relying on them for information. Well trained AAs (volunteers or paid) have the knowledge and experience to challenge without obstructing an investigation and, in theory, could be subject to inspection or regulation. But they are usually unknown to the child and must be skilled in building rapport. The ideal may be for schemes and parents to work together.
Access to support
The AA safeguard is essential, but too often it is not used effectively. While many children receive rapid, extensive and excellent support, some only get an AA immediately before an interview. They spend hours without support, significantly increasing risks to justice.
PACE requires police to tell the AA and secure their attendance as soon as is practicable, and children have a right to consult privately with their AA at any time. However, research has found police delaying referrals and limiting access to children.
Legislation and standards make it clear council AA provision must be available at any time.
Nevertheless, availability is a common frustration. Some schemes do not operate 24/7, respond quickly, support the entire custody process, or support voluntary interviews. Councils must design and resource AA schemes that enable PACE compliance.
Minimising children’s detention is central to the United Nations Convention on the Rights of the Child, National Police Chiefs Council strategies on custody and children, and College of Policing Authorised Professional Practice. Yet average detention times have risen. Children are sometimes unnecessarily detained in the day and overnight – a risk for them and police. The extent to which authorisations and reviews of detention are focused on children’s interests varies. Councils fail in their legal duty to provide accommodation and sometimes police do not ask.
Voluntary interviews address custody concerns, but bring their own risks. In addition to most AA schemes, most liaison and diversion services (which expertly identify vulnerability in custody) are not configured to serve them. With no independent custody officer, investigating officers are responsible for rigorously applying safeguards against themselves. Children (and parental AAs) may see such interviews as informal chats, not deserving of legal advice.
Resources and culture
There is a significant, perhaps widening, gap between law and practice. Some PACE requirements are seen as impractical. Breaches are commonplace and often considered a minor matter, especially where cases will not go to court.
Resources are critical. Both police and councils are doing difficult jobs in challenging circumstances.
However, so is culture. Notwithstanding the police’s rigorous focus on physical safety, and initiatives on modern slavery, trafficking, county lines, and using custody constructively, children are in the first stage of an adversarial justice system. They are in crisis and at risk. They are not ‘safe’.
Much more must be done by all of us: NAAN, government, police, lawyers, councils, providers, and AAs. We must make sure our ‘children first’ laws and policies apply in practice.
The content above first featured in an article by Chris Bath for the magazine of the Independent Office for Police Conduct.
NAAN is engaged with a range of policy issues affecting children and young people. We seek to use our position, including our seat on the Home Office's PACE Strategy Board, to highlight the specific needs of children and young people and to safeguard their interests in policy development. Click on a heading below to read more about our policy priorities relating to children and young people.
Transfers to local authority accommodation
National concordat on children in custody (Home Office)
Detailed flow-chart of the legal framework (NAAN)
Once a child 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. It is designed to ensure that children are detained for the minimum time necessary, as per our 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.
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.
- 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.
- 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.
- 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
- 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
- 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.
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 pending 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
Professionals vs parents
The result is that organised appropriate adult schemes only support around one third of arrested children. But who is best placed to fulfil the appropriate adult role?
Some argue that an unreasonable expectation is being placed on parents. How can they be expected to safeguard a child effectively against breaches of the immense PACE Act and complex Codes of Practice? This is even more challenging given the fact that it’s an emotional experience when your child is arrested – perhaps especially if it is the first time or a serious allegation.
In contrast, under the NAAN national standards new appropriate adults should be given 20 hours of training and two shadowing visits to police custody. Whether they are paid or a volunteer, they have a professional relationship with the child rather than an emotional one. Over time, they have opportunity to develop a deep understanding of the PACE Codes and the confidence to challenge police practice.
However, others argue that parental responsibility is a decisive factor. Furthermore, no matter how well a professional AA) is trained, it is unlikely that they will know the child and their individual needs. And of course, there is the argument that the taxpayer does not have to pay for parents.
When considered objectively, academic evidence certainly suggests that parents are not effective appropriate adults. As we highlighted in a recent literature review, the use of family members as AAs for children is fraught with difficulty. Problems with the use of parents as AAs for children include; a misunderstanding of the AA role, the threat of physical violence towards their child, pressure on their child to confess, aggression towards police and their involvement in ongoing family conflicts. Even the best intentioned, most educated and assertive are challenged by a lack of knowledge and their emotional state. Some parents will be naturally compliant or hostile towards the police – neither of which is likely to deliver the best outcomes for a child.
NAAN’s view is that, while parents cannot be expected to understand PACE, they should not be excluded from the process (unless they are genuinely inappropriate).
Parents hold knowledge about an individual child that may be critical to ensuring they can participate effectively in the process. Professional appropriate adults have an understanding of custody procedures, rights and entitlements that is critical to providing an effective safeguard.
Rather than making an either/or decision, NAAN would like to see policy and practice develop to support a collaborative model. Such a model would be dynamic, allowing information and responsibilities to be shared across parents and providers. This might involve parents sharing information with a professional before they attend, or even AA services coaching a parent as they take on the role.
24/7 AA Provision
The majority of AAs for children are parents. For some, attending outside office hours will be easier, while others it may be more difficult – for example due to child care commitments. So what expectations should be placed on organised AA schemes?
From a legal perspective, PACE does not specify times during which police cannot conduct interviews or other investigatory procedures. The statutory duty on Youth Offending Teams to ensure provision of an AA does not specify operational hours or any other limit on the duty. Therefore, it is clear that AA schemes for children should have the ability to respond whenever they are needed.
HM Inspectoprate of Contabulary's expectations for police custody require that, "Independent appropriate adult schemes for children and vulnerable adults are in place, operate to relevant national standards and are used". One of the indicators for this is that AAs are available 24 hours a day.
However, this does not mean that schemes are bound to always provide an AA when the police request one in order to carry out an interview or other procedure.
PACE Code C states that, “in any period of 24 hours a detainee must be allowed a continuous period of at least 8 hours for rest, free from questioning, travel or any interruption in connection with the investigation concerned. This period should normally be at night or other appropriate time which takes account of when the detainee last slept or rested.”
The AA scheme has a duty to ensure this right is met. In so doing, they may reasonably refuse to enable police procedures where they conflict with the right. Police should not be enabled to interview when a child is not alert. However, this is not justification for a fixed policy of not attending after a certain time. The decision must be made on the basis of the individual child’s best interest, after consideration of their particular sleep/wake cycle and level of alertness.
The YOT’s statutory duty is to ensure the provision of AAs to safeguard the interests of children and young persons, not the convenience of police officers. The police are under obligation to minimise the time children spend in detention. The ability of schemes to provide or withhold an AA can be a powerful tool in ensuring children’s cases are expedited.
Current Youth Justice Board guidance captures the nuance effectively, stating, “This duty applies at any time of day or night. You should consider requests for attendance out-of-hours in line with the best interests of the individual child.”
It must also be recognised that, while a small number of AA schemes have informed NAAN that they are operating 24/7 services, many do not currently have the resources to provide such a service. In order to meet the increasing expectations and current legal duties, it is likely that resources will need to be increased above current levels.
17 year olds
NAAN was proud to work alongside other voluntary sector organisations to ensure 17 year olds were recognised as children in police custody – and secure their right to an appropriate adult.
By order of the Home Secretary Theresa May, PACE Code C was amended to this effect in 2013. The status of 17 year olds was improved in legislation with the passing of the Criminal Justice and Courts Act 2015 and is due to be fully rectified by the Policing and Crime Bill.
17 year olds make up a very large proportion of all arrested children. Therefore, this very welcome change resulted in a significant increase in demand on children’s appropriate adult schemes, which are a statutory duty of Youth Offending Teams.
Under the new burdens doctrine, the Home Office was expected to fund this increased burden on local authorities. As of 2016, no transfer of funds has yet taken place.
NAAN has: -
- Repeatedly raised the issue with the Home Office
- Published a paper estimating the cost to be around £1.5 million per year
We work closely with organisations involved with children's rights and the criminal justice system, including:
- Children's Commissioner
- Child Rights Alliance for England
- HM Inspectorate of Constabulary
- Howard League for Penal Reform
- Just for Kids Law
- Youth Justice Board
NAAN is also a member of the Standing Committee for Youth Justice.