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Children, Courts and Video-link: An Update on the Guidance on Video Enabled Remand Hearings for Children

Principles Paper: Court Solutions for video enabled remand hearings: Working Group for Children, YJB & HMCTS, June 2020

The Youth Justice Board (YJB) and HM Courts and Tribunal Service (HMCTS) have released new guidance (‘the paper’). The paper sets out principles before giving practical guidance on procedure for the use of video link in relation to proceedings involving children in police detention.

Details

Operational principles

The operational principles derive from the Youth Justice Board’s Covid Guidance, the UN Convention on the Rights of the Child 1992, the Children Act 2004 and the Children Act 1989.

The paper acknowledges that the primary consideration is the child’s welfare and that each decision must be made on a case-by-case basis with regard to the welfare needs of each child. Even in light of the Covid-19 pandemic, there should be no default position that a child’s hearing will be via video-link and it is ultimately a matter for the judiciary, with these principles assisting judges in making decisions. This should be the case for all children involved in legal proceedings.

The paper states that children must be: 1. Fairly assessed and represented, 2. Sufficiently supported, 3. Able to understand what is happening to them, 4. Able to fully engage and participate, and  5. Kept safe.

This is in addition to the need for children to be fully engaged and able to participate in the court process generally.

The paper further acknowledges the following broad ‘child first’ principles: 1. Children are treated as children, have their rights upheld and have their individual needs recognised, 2. The developing of children’s pro-social identity and to reach their potential, 3. Ensure children are fully included and engaged, and 4. Ensure children are kept safe and out of the justice system. Children’s social inclusion should be encouraged and pre-emptive prevention, diversion and minimal intervention promoted.

Options when attending court when a child is detained in Police Custody for a Court hearing

The considerations in the paper apply to the attendance of the child, Youth Offending Team (YOT) and parent/ guardian when a child is detained in police custody for a court hearing. Lawyers will attend in person or virtually using the Cloud Video Platform or defence lawyers may be able to conduct the hearing from the police custody unit.

The court always has discretion as to whether a child appears via video-link. All parties and the YOT the can make representations to the court. The judge will always have regard to the interests of justice.

The paper discusses the advantages and disadvantages of six ways the child, YOT and parent/ guardian can attend:

Option One: The child, YOT and parent/guardian all appear via video-link from the police station

Advantages

  • Social distancing will be easier if the child and parent/ guardian are from the same household.
  • There will be no need to transport the child to court.
  • YOT can conduct an assessment in person.
  • The parent/ guardian can supervise and support the child immediately if they are released.

Disadvantages

  • YOT would have to travel to the police station.
  • Availability of PPE for everyone
  • The child will remain in a custody setting for longer, which may affect their mental health and other risk factors
  • There is a risk of reduced understanding due to potential difficulties of communicating (especially for children with Special Educational Needs)
  • Potentially blurs the police and court processes.
  • Social distancing concerns at the police station.

 

Option Two: The child and the parent/guardian appear via video-link from the police station and YOT are in the court room or appear remotely via video

Advantages

  • Social distancing will be easier if the child and parent/ guardian are from the same household.
  • Minimises travel for the child and parent/ guardian.

Disadvantages

  • There is a risk of reduced understanding due to potential difficulties of communicating (especially for children with Special Educational Needs).
  • Potential failure to recognise the emotional needs of the child
  • Potentially blurs the police and court processes.
  • Social distancing concerns at the police station. 

Option Three: The child and YOT appear via video-link from the police station and the parent/ guardian is in the court room

Advantages

  • Minimises travel for the child.
  • YOT can conduct an assessment in person.
  • If released, the child may be able to be supervised by the member of YOT subject to their professional commitments.

Disadvantages

  • Social distancing concerns at the police station.
  • Restriction of parents/ guardians’ ability to offer support.
  • Parents would need to travel from the court to the police station if the child is released.
  • YOT would have to travel to the police station.
  • Potentially blurs the police and court processes.
  • There is a risk of reduced understanding due to potential difficulties of communicating.

Option Four: The child appears via video-link from the police station, the parent/ guardian is in the court room and YOT appears remotely

Advantages

  • Minimises travel for the child.
  • Reduced risk to YOT.

Disadvantages

  • Restriction of parents/ guardians’ ability to offer support.
  • Parents would need to travel from the court to the police station if the child is released (potentially already having travelled to court from the police station).
  • YOT can only make an assessment by telephone.
  • There is a risk of reduced understanding due to potential difficulties of communicating (especially for children with Special Educational Needs).
  • Potentially blurs the police and court processes.

Option Five: The child and the parent/ guardian are in the court room and YOT appears remotely

Advantages

  • Reduced risk to YOT.
  • Parent/ guardian can support the child which also increases understanding and communication
  • Clear demarcation between the police and court processes.

Disadvantages

  • Child is required to travel to court.
  • YOT can only make an assessment by telephone.

Option Six: The child, YOT and parent/guardian are all in the court room

Advantages

  • Parent/ guardian can support the child.
  • Clear demarcation between the police and court processes.
  • YOT can conduct an assessment in person. 

Disadvantages

  • Child is required to travel to court.
  • YOT would have to travel to court.
  • Social distancing in the court cells is difficult and there is a lack of PPE.

Considerations for local implementation and procedure

The paper outlines practical questions regarding the facilities and practical considerations that should be borne in mind. It sets out a checklist which includes such matters as whether video-link facilities are practically available, if they have local limitations and whether YOT or parents/ guardians are able to attend (and remain at) a police station especially if a young child requires escorting home if released.

On the day procedure:

  1. The police will have regard to the checklist above when triaging a child for a video hearing. Further, the police must notify YOT at the earliest opportunity of a child detained for court, including the reason why they haven’t been moved to local authority accommodation under section 38(6) PACE and the proposed methods of the hearing taking place and obtain YOT’s views.
  2. If YOT’s recommendation is not followed, the police must record their reasons and send them to court and inform YOT immediately. YOT should then email their observations to the court.
  3. The court will have regard to local limitations (from the checklist above), all observations made and the principles detailed in the paper and summarised above. The court will then make the final decision.
  4. All parties will all be immediately notified. This will include the police, YOT, parent/ guardian, prosecution and defence lawyer/s.

Commentary

The principal aim of the youth justice system is to reduce re-offending. Consideration of the child’s welfare is paramount. Of course the Covid-19 pandemic has put pressure on the safeguarding of children, maintaining the safety of professionals and ensuring quick and fair justice. However, the paper purports that the operational principles it proposes regarding the use of video-link in children’s cases will achieve this aim and it is a concern that ‘practical considerations’ will take priority over the welfare of children as often happens in the Criminal Justice System. Indeed, the initial ‘triage’ for a video hearing is completed by the police who are arguably not best placed to consider the welfare of the child.

It states that the court when making their final decision will regard ‘all observations’ so it will be paramount that defence practitioners and family members ensure observations are sent on behalf of the child to be considered before the final decision is made. Clearly time will be of the essence in such scenarios and so all involved will need to act quickly to obtain as much information as possible to give the court as observations and ensure the court’s decision is as well informed as possible.

The paper confirms that defence lawyers may appear in court in person or remotely or may attend the police station. Arguably the most important practical factor, when considering the welfare of the child, is that they are in the same place as their lawyer as this will maximise the chances of them understanding and participating effectively in the proceedings.

Written by Hannah Williams (Barrister) & Samantha Ball (Pupil Barrister) at 3 Temple Gardens in collaboration with the Youth Justice Legal Centre.