Expert guidance published by the Howard League and Garden Court Chambers on keeping children out of custody during the Covid-19 pandemic

As you read this, the majority of children in a young offender’s institution in England and Wales will be spending 23 hours a day in their cell. The global coronavirus pandemic has led to unprecedented changes to our everyday lives. But as restrictions are slowly starting to be lifted for the general public, children in prison remain in solitary conditions. The Howard League has published a briefing on Children in prison during the Covid-19 pandemic and are now launching a practitioner’s guide on Ending the detention of unsentenced children during the Covid-19 pandemic.

As the Howard League’s briefing on Children in prison during the Covid-19 pandemic shows, custody is a damaging environment for children under normal circumstances but it has become far worse during the pandemic. Severely restricted prison regimes have led to the majority of children being held in prolonged solitary confinement with no face-to-face visits, an almost total absence of education or therapy; and difficulties in contacting families and professionals making planning for court hearings especially problematic. The need to observe social distancing means that these restrictions are likely to be in place for the foreseeable future.

A significant proportion of the children being held in solitary conditions are on remand. They are children who are not yet convicted of an offence or are awaiting sentence. The number of children in custody on remand is worryingly high.  They currently account for over a third of children held in the Youth Secure Estate. But now that all criminal trials have been suspended, there is a risk this will only increase as children on remand are inevitably going to spend longer in custody, and with no certainty as to when their trial will take place – children are being indefinitely detained.

Leaving children in limbo, with such severe conditions in custody, is not an option. The majority of children on remand will not go on to receive a custodial sentence. In 2019, over two thirds of children remanded to youth detention accommodation did not subsequently receive a custodial sentence. We also know that children from black, Asian and minority ethnic (BAME) backgrounds are disproportionately affected. In prisons in the South of England over two thirds of children on remand are from black, Asian and minority ethnic backgrounds.

That is why Garden Court Chambers and the Howard League have teamed up to support practitioners applying for bail for children awaiting trial or sentence. The law on bail and remand for children is complex and we believe opportunities are missed to enable these children to live in the community.  On 28 April 2020, Garden Court Chambers hosted a webinar on this topic attended by over 80 practitioners (Ending indefinite pre-trail detention of children), which outlined the legal duties in respect of bail hearings and community care needs. This is part of a focus Garden Court has placed on Children in the Criminal Justice System, including publishing a Child Protocol for Criminal Cases.

This practitioner’s guide provides legal and practical guidance for defence lawyers to resist applications to remand children to custody and assist them in making effective bail applications for children during the pandemic. It takes practitioners through the key legal framework, including the court’s duty to have regard to the child’s welfare and depriving a child of liberty should always be a last resort and for the shortest period of time. During the pandemic it is not possible to guarantee any of these things.

The guide highlights relevant case law including a recent judgment (dated 30 April 2020) in which the Lord Chief Justice provides guidance that judges can ‘and in our judgment should’ consider the impact of custody during the current emergency, referring to the fact that those in custody are confined to the cells for 23 hours a day, unable to receive visits as well as the anxiety for them and their families about the risk of the transmission of Covid-19.  The guide also outlines the duties that exist on local authorities under the Children Act 1989 to ensure that community packages are available for children.  The Howard League has also produced an easy to use flow chart to guide practitioners through the law affecting children on remand who could be released if a package is put in place. A more detailed analysis of the bail and remand legal framework is set out in Legal Action Group’s Youth Justice Law and Practice (published April 2019).

Custody should only ever be a last resort for children, and for the shortest possible time. In these extraordinary times, children on remand are especially vulnerable and it is particularly important for them to be supported by lawyers who are actively working with the youth offending team, and where appropriate children’s services, for their release from custody.

Many of the children who are released from remand or for whom successful bail applications are made, will require residential care. It is particularly important that agencies work together to put the best package of support possible around children in order to protect them from further criminalisation.

Kate Aubrey-Johnson, Barrister, Garden Court Chambers and Laura Janes, Legal Director, Howard League for Penal Reform