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Safeguarding First: Child rights and welfare submissions for Criminal Practitioners

This guide will support criminal practitioners representing children. It covers the intersection between criminal law and safeguarding and welfare law and sets out the duties owed to children in contact with the criminal justice system.

Download the Safeguarding First Legal Guide Here

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Safeguarding Welfare Legal guides

Introduction

Safeguarding and welfare duties

Duties of the criminal lawyer

United Nations Convention on the Rights of the Child

European Convention on Human Rights

Welfare and safeguarding duties for children at the police station

Welfare and safeguarding duties owed to children by the Crown Prosecution Service

Exploitation – welfare and safeguarding duties owed to children at risk

Welfare and safeguarding considerations by the courts

Remanded or sentenced children

Adultification and safeguarding

Children placed in Scotland, Wales or Northern Ireland

Introduction

‘The Youth Justice System in England and Wales describe a longstanding struggle between welfare-orientated and punitive approaches.’  Often, the Youth Justice System has failed to acknowledge the wel­fare and rights of children, focusing on offending behaviour. This guide covers the intersection of criminal with safeguarding and welfare law. The investigation and prosecution of crimes are often prioritised over the protection and welfare of children. The legal profession can address this im­balance, using the force of the law and the rights and entitlements of children. 

This guide sets out the safeguarding and welfare duties owed to children in contact with the criminal justice system. Interpretation of safe­guarding and welfare is key. A criminal practitioner should be armed with all the relevant legislation and interpretation to be an effective advocate for the child. This guide does not cover when criminal lawyers may need to make a safeguarding referral.

How to protect children in the youth justice system 

  1. Child first – The Youth Justice Board (YJB) has replaced a ‘preventing offending’ approach with a ‘child first’ model. This means that professionals should see the child first and the of­fender second. Practitioners should ensure that the criminal courts keep the welfare of the child at the heart of the Youth Justice System. To date, the ‘child first’ approach and its principles have been adopted by the YJB, the Crown Prosecution Service (CPS) and the Metropolitan Police.
  2. Safeguarding and welfare – Practitioners in the family justice system are familiar with the concept of child welfare. The family court engaged with care proceedings is required to keep safeguarding, best interests and the wishes and feelings of the child as the focus for decisions. Children in contact with the criminal justice system should have the same protec­tions. Some of this language is aligned with the UN Convention on the Rights of the Child.

Safeguarding and welfare duties

Safeguarding is the action you take to promote the welfare of children and protect them from harm. When dealing with children, safeguarding and welfare duties apply at all times irrespective of their status as offenders, or alleged offenders. All children at all times are entitled to the same safeguards and protections and due regard should be given to their safety and welfare.  

‘Working together to safeguard children’ (‘Working together’)  defines safeguarding and promoting the welfare of children as: 

  • providing help and support to meet the needs of children as soon as problems emerge
  • protecting children from maltreatment, whether that is within or outside the home, including online
  • preventing impairment of children’s mental and physical health or development
  • ensuring that children grow up in circum­stances consistent with the provision of safe and effective care
  • promoting the upbringing of children with their birth parents, or otherwise their family network through a kinship care arrangement, whenever possible and where this is in the best interests of the children
  • taking action to enable all children to have the best outcomes in line with the outcomes set out in the Children’s Social Care National Framework. 

Welfare and safeguarding: legislation 

The welfare and protection of children are en­shrined in a number of different statutes. In some instances, the safeguarding and welfare pro­tections may be weaponised to further penalise children. The statutes were designed to protect children and should be used to support whatev­er course of action the child and their advocate decide upon, pursuing the best outcome for the child. 

Statutory agencies 

Section 11 of the Children Act 2004 applies to a range of agencies, including local authorities, the police and health services. These agencies are under a duty to ensure they consider the need to safeguard and promote the welfare of children when carrying out their functions. 

The courts

Section 44(1) of the Children and Young Persons Act 1933 states: 

‘Every court in dealing with a child or young person who is brought before it, either as an offender or otherwise, shall have regard to the welfare of the child or young person and shall in a proper case take steps for removing him from undesirable surroundings, and for securing that proper provision is made for his education and training.’ 

While the courts often state they are aware of their welfare duties, practitioners should remind the court explicitly of what welfare means as defined by the statutory guidance.

Schools 

Section 175 of the Education Act 2002 places a duty on the governing bodies of maintained schools and further education institutions to carry out their functions with a view to safeguarding and the welfare of children. This protection can be used by schools to challenge police efforts to criminalise children or cause them ‘significant harm’ (for example, if the police arrest a child unnecessarily or require them to undergo strip searches or other forms of humiliation). There is nothing that states a criminal investigation takes priority over child protection and safeguarding protections. 

Welfare and safeguarding: statutory guidance 

All public bodies in England are required to comply with statutory guidance regarding safeguarding.  Currently, this statutory guidance is ‘Working together’.  In Wales, the equivalent statutory guidance is called the ‘Single unified safeguarding review’ (2024). 

Child protection 

Child protection is part of the safeguarding pro­cess. It focuses on protecting individual children identified as suffering, or likely to suffer, signifi­cant harm. 

‘Working together’ states that suffering or likely to suffer significant harm ‘can take different forms, including sexual, physical or emotion­al abuse, neglect or domestic abuse (including controlling or coercive behaviour, exploitation by criminal gangs or organised crime groups, trafficking, online abuse, sexual exploitation, and the influences of extremism which could lead to radicalisation.’  This includes children’s contact with the police outside of the formal systems. 

There are different statutory safeguarding guidance under different areas of a child’s life: 

  • ‘Keeping children safe in education’ 
  • ‘Modern slavery: statutory guidance for Eng­land and Wales, etc.’ 
     

Duties of the criminal lawyer

For children in the criminal justice system, the suffering or likely suffering may be caused by the police, the court process or the custodial estate. The role of the criminal lawyer is to promote the welfare of the child they are working with. 

Children’s rights and entitlements contained within national legislation and guidance are rein­forced by the UK’s obligations under international law, including the United Nations Convention on the Rights of the Child (UNCRC). All these legal protections provide criminal defence lawyers with the tools to fight for and protect their child client. 

This guide encourages and equips criminal defence lawyers to: (i) act in the best interests of their child client; (ii) ensure that their needs for a home and support are met; and (iii) protect them from abuse and harm, including trauma that may be exacerbated by agents of the state.

Case study: conflict of criminal law and child protection/safeguarding law 

‘… the incident that happened (was) treated not as a safeguarding issue. (It was) treated as a criminal matter.’ 

Child Q’s mother 

‘In hindsight I put my trust in the law; I know now that I need to understand the law better.’ 

School staff 

A local safeguarding practice review  was undertaken by the London Borough of Hackney on be­half of Child Q, a 15-year-old schoolgirl, who was accused of smelling of cannabis by a teacher. The school called in the police and Child Q was removed from an exam by the police to a room where she was stripped. She was required to bend over and spread her legs. During this ordeal, she was menstruating and had no parent present. Strip searches are, by definition, one of the most intru­sive and exposing of police powers. The local safeguarding review found ‘that Child Q had been exposed to a traumatic incident and had undoubtedly suffered harm…. Given the context of where and how the search took place, it was impossible not to view these circumstances as anything other than the most serious and significant.’ 

The review found: 

  1. Across many of the professionals involved that day, there was an absence of a safe­guarding first approach to their practice. 
  2. The decision to strip search Child Q was insufficiently attuned to her best interests (arti­cle 3 UNCRC) or right to privacy (article 16 UNCRC).  
  3. School staff deferred to the authority of the police on their arrival at school. They should have been more challenging to the police, seeking clarity about the actions they intended to take. All practitioners need to be mindful of their duties to uphold the best interests of children. 
  4. School staff had an insufficient focus on the safeguarding needs of Child Q when re­sponding to concerns about suspected drug use.  
  5. Taking a binary approach as to whether a crime has been committed or not runs the risk that important aspects of a child’s life will be missed … which may make the difference between that child being protected or not.  
  6. Practice that day appears to have been far too weighted towards a criminal justice re­sponse. 
  7. Where any suspicion of harm arises by way of concerns for potential or actual substance misuse, a safeguarding response is paramount. 
  8. The absence of any specific requirement to seek parental consent when strip searching children undermines the principles of parental responsibility and partnership working with parents to safeguard children.  

United Nations Convention on the Rights of the Child

Children have specific rights that are enshrined in the UNCRC. It is the most ratified international treaty in the world. In 1990, the United Kingdom ‘ratified’  the UNCRC. As an unincorporated treaty, the rights cannot be directly argued in domestic courts unless there is an equivalent or similar provision in domestic legislation or the European Convention on Human Rights (ECHR). 

‘Working together’  guidance states: 

‘the United Nations Convention on the Rights of the Child (UNCRC) which is an internation­al agreement that protects the rights of chil­dren and provides a child centred framework for the development of services to children. The UK Government ratified the UNCRC in 1991 and, by doing so, recognises children’s rights including to expression and receiving information.’ 

Youth justice practitioners can and should re­fer to the above ‘Working together’ explanation of the UNCRC when making representations to the local authority, the police and the courts. Every professional in the Youth Justice System is bound by this statutory guidance. 

Children in Wales have additional UNCRC protection. The Rights of Children and Young Persons (Wales) Measures 2011  place a duty on Welsh Ministers to have ‘due regard’ to the rights and obligations in the UNCRC when making deci­sions of a strategic nature. 

The key UNCRC articles for criminal practitioners in England and Wales are: 

  • Article 3(1): In all actions concerning children undertaken by public institutions, courts of law, administrative authorities and legislative bodies, the best interests of the child shall be a primary consideration.
  • Article 16: Every child has the right to privacy. The law should protect the child’s private, family and home life, including protecting children from unlawful attacks that harm their reputation
  • Article 37: ‘The arrest, detention or impris­onment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time’.
  • Article 39: ‘States Parties shall take all appropriate measures to promote physi­cal and psychological recovery and social reintegration of a child victim of: any form of neglect, exploitation, or abuse; torture or any other form of cruel, inhuman or degrading treatment or punishment; or armed conflicts. Such recovery and reintegration shall take place in an environment which fosters the health, self-respect and dignity of the child.’ 

European Convention on Human Rights

The ECHR has been brought into domestic law through the Human Rights Act 1993. There are specific protections within the ECHR that are relevant to issues of child protection, welfare and safeguarding: 

  • Article 2 – Right to life
  • Article 3 – Prohibition of torture and inhuman or degrading treatment or punishment
  • Article 5 – Right to liberty and security
  • Article 6 – Right to a fair trial
  • Article 8 – Right to respect for private and family life
  • Article 14 – Prohibition of discrimination 

Practical tips – how to make representations using the UNCRC

These can be advanced in any submissions: 

  1. Practitioners supporting a child client against a criminal justice response, in writing or orally, from contact with the police, the prosecution, the courts and the custodial estate, can rely upon the rights enshrined in the UNCRC as every professional has a duty to protect, safeguard and promote the welfare of the child.
  2. The UK government’s ‘Working together’ guidance states ‘The UK Government ratified the UNCRC in 1991 and, by doing so, recognises children’s rights’.  
  3. Lord Steyn in R v G [2003] UKHL 50 at para 53: ‘Ignoring the special position of children in the criminal justice system is not acceptable in the modern civil society.’ 
  4. Lady Hale in ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 at para 23: ‘… the most relevant national and international obligation of the United Kingdom is contained in article 3(1) of the UNCRC: “In all actions concerning children, whether under­taken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” This is a binding obligation in international law, and the spirit, if not the precise language, has also been translated into our national law. Section 11 of the Children Act 2004 places a duty upon a wide range of public bodies to carry out their functions having regard to the need to safeguard and promote the welfare of children.’ 

Welfare and safeguarding duties for children at the police station

Section 11 of the Children Act 2004 places a spe­cific duty on the police (including British Transport Police) to discharge their obligations while having regard to the need to safeguard and promote the welfare of children. The College of Policing’s ‘Chil­dren and young persons’ authorised professional practice  reiterates this. It requires local polic­ing bodies and chief officers to cooperate with arrangements to improve the wellbeing of children in the authority’s area in relation to:

  • physical and mental health and emotional wellbeing
  • protection from harm and neglect
  • education, training and recreation
  • the contribution made by them to society
  • social and economic wellbeing.

The National Police Chiefs’ Council (NPCC) recog­nises that poor treatment throughout the custody process is an adverse childhood experience and could add to children’s trauma. Their ‘Children and young persons policing strategy 2024–2027’ ex­plains that child centred policing ‘reduces trauma for Children and Young People when all practice and contact is culturally competent, empowering, collaborative, provides choice, is trustworthy and brings safety.’ 

In London, the ‘Metropolitan Police Service children’s strategy’ recognises that the policing of children ‘is inherently challenging as the full circumstances of encounters may not be imme­diately obvious, and may involve simultaneously safeguarding children whilst protecting others from children engaged in offending behaviour.’ 

Arrest

The College of Policing’s ‘Children and young per­sons’ authorised professional practice  empha­sises that when arresting and detaining children, officers must:

  • take into account the age of a child or young person when deciding whether any of the Code G statutory grounds for arrest apply
  • pay particular regard to the timing of any necessary arrest of children and young people and ensure that they are detained for no longer than needed in accordance with para­graph 1.1 of Code C
  • avoid holding children overnight in police cells unless absolutely necessary.

Case study 

The case of ST v The Chief Constable of Nottinghamshire Police [2022] EWHC 1280 (QB)  provides judicial oversight to the policing of children. 

ST was 14 years old when arrested at 5:30am at his home address, 12 days after allegedly being involved in a phone robbery from a fellow school student. ST’s father offered to bring his son to the police station at a reasonable hour, which the arresting officers refused. ST’s house was searched and he was arrested and detained in an adult cell for 6 hours before interview. He was not charged. 

On appeal, the court found that: 

  1. There was no evidence that the police had considered ST’s welfare [para 15].
  2. ST’s age was a ‘central and obvious consideration’ [para 94].
  3. Consideration of a child’s best interests and welfare must be factored into police decisions on arrest [para 95].
  4. ‘Where time for reflection exists, the test of necessity for arrest and detention requires anxious scrutiny of the fact that a child is involved. This approach is consistent with the duty under the Children Act 2004 and wider obligations’ [paras 94–95]. ‘The test of necessity… is a high bar, introduced for all offences in 2005 to tighten the accountability of police officers’ (Commissioner of the Police for the Metropolis v MR [2019] EWHC 888 (QB)  at para 47).
  5. Police must differentiate between children and adults when considering the necessity of arrest and detention as required not only by PACE 1984 but by wider obligations including the UNCRC (arts 3 and 37) and the Children Act 2004 (s11). These ‘cannot be watered down to a mere matter of an officer’s discretion as to whether it should be afforded any weight. Rather it must be considered, as an obviously material factor, when assessing whether the arrest of a child is necessary at any particular time’ [para 116].
  6. Code G of the Police and Criminal Evidence Act (PACE) 1984 contains direction at paragraph 1.3: ‘The use of the power [of arrest] must be fully justified and Officers exercising the power should consider if the necessary objectives can be met by other, less intrusive means’ [para 42].
  7. PACE provides ‘the important safeguard of an independent assessment by the custody officer before a person can be deprived of their liberty. A perfunctory nod towards the cells will not suffice’ [para 144].
  8. There ‘were no reasonable grounds for believing that it was necessary to place a distressed boy in a cell. No custody officer, properly applying his common sense to the competing considerations before him, could reasonably have reached that decision’ [para 149].

Interviews with children 

The NPCC acknowledges that the custody process is an ‘adverse childhood experience’, including when the police interview a child who is already traumatised. 

A legal representative can raise their con­cerns before a child is interviewed by the police if they have reason to believe that the interview process could further traumatise the child. A child may have already been deemed fit for interview prior to the legal representative arriving. However, should the representative have concerns, they can request to delay the process for a further assess­ment of the child’s mental health to be carried out. Unfortunately, as fewer and fewer force medical examiners (FMEs) are based in the police station and operate on an ‘on call’ basis, this could cause further delay and distress to the child if it prolongs detention. 

Furthermore, a legal representative can make a statement on the record on the basis of safe­guarding and welfare grounds. They can state that they are of the view that being interrogated by the police about a particular matter might cause the child to suffer significant harm. The legal repre­sentative can cite the specific safeguarding duties in section 11 of the Children Act 2004 as well as the College of Policing’s ‘Children and young persons’ authorised professional practice, which states that the Children Act obligations of the police relate to a child’s physical and mental health and emotional wellbeing as well as protection from harm. 

If a child discloses that they are a victim of trafficking, the legal representative is allowed to request that an achieving best evidence (ABE) interview takes place instead of a police investi­gative interview. This is in line with safeguarding a child’s welfare. Police guidance states that if a suitably trained First Responder becomes aware of a potential victim, they should make arrange­ments for a specialist interview and the child should be offered an ABE interview.  Solicitors should note that once the interview becomes an ABE interview, the child has no right to have a solicitor present. This can present some difficulty where a child may be incriminating themselves in relation to the offence for which they have been arrested or historical offences for which the police have no evidence in order to provide their account.

The welfare interview at the police station 

Where the police indicate that a welfare interview is to take place, representations should be made for it to take place as soon as the child is detained as the answers may affect how or whether the child is detained. In practice, welfare interviews often take place prior to a solicitor arriving at the station as they will usually only attend once the case is ready for the PACE interview. It is impor­tant for the solicitors to enquire with the custody sergeant and interviewing officers as to whether they intend to conduct a welfare interview and, if so, for it to happen before or after the PACE interview to allow the solicitor to be present. Unfortunately, officers often see the presence of a solicitor as a barrier to obtaining information ‘off the record’. 

Ideally, the legal representative should attend the welfare interview to ensure that the police do not ask any inappropriate questions that relate to the matter the child has been arrested for. 

The legal representative can make additional representations regarding the need for continued detention in light of any vulnerabilities the child may not have disclosed to the police.

Practical tips 

  • Remind the custody officers and interviewing officers that safeguarding and welfare duties apply to the police (s11 Children Act 2004) and to all children whether being dealt with as of­fenders or otherwise (‘Working together’, para 246). 
  • Legal representatives should note the timing of any arrest for a child. Representations should be made about a more suitable time or a different method of interview such as a voluntary interview. Legal representatives can argue against a child being placed in a cell. These are potential safeguarding breaches.
  • Remind the police that they must differentiate between children and adults when considering the necessity of arrest and detention as required by PACE 1984 and wider obligations, includ­ing the UNCRC (arts 3 and 37) and the Children Act 2004 (s11).
  • Request a meaningful, independent, review by the custody officer regarding the detention of a child and the test of necessity for arrest and detention.
  • Alert police officers of their safeguarding duties towards children in police detention in order to prevent traumatising children (NPCC guidance ).
  • Discuss adaptations that take into consideration the welfare of the child, for example, an alter­native to a police cell, constant supervision, or the child sitting with a parent in a consultation room, etc.
  • Where a legal representative does not believe a child’s welfare has been safeguarded when in contact with the police, they can make written representations to the police and crime com­missioner. 

Welfare and safeguarding duties owed to children by the Crown Prosecution Service

The Crown Prosecution Service (CPS) has up­dated its guidance for ‘Children as suspects and defendants’, adopting a Child First approach. In explaining why it has adopted a child first ap­proach, the guidance states it ‘is the belief that children coming to the attention of the Youth Justice System are seen as “children” first and “offenders” second. The primary focus of this approach is prevention, diversion, and a clear commitment to developing interventions to avoid unnecessary prosecutions and criminalisation of children.’  

When deciding whether or not to prosecute children, including offering an out of court dispos­al, the CPS ‘Children as suspects and defendants’ guidance states the key considerations governing the decisions made by prosecutors in dealing with children are: 

  • article 3 of UNCRC – ‘in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies the best interests of the child shall be a primary consideration’.
  • section 44 of the Children and Young Persons Act 1933 – every court dealing with a child shall have regard to their welfare.
  • section 37 of the Crime and Disorder Act 1998 – the principal aim of the youth justice system is to prevent offending by children.
  • ‘The Code for Crown Prosecutors’, in par­ticular the considerations as to whether a prosecution of a child is required in the public interest (para 4.14(d)). 
  • ‘Standards for children in the youth justice system 2019’. 
  • NPCC ‘Child Gravity Matrix’  – the tool used to assist in deciding the most appropriate outcome or disposal for children, based on the offence committed and taking into account aggravating and mitigating factors, to give a final score that will indicate an appropriate outcome. In addition to the Matrix, prosecu­tors need to apply ‘The Code for Crown Pros­ecutors’ and other guidance referred to.
  • NPCC ‘Community resolutions guidance’  and NPCC ‘Outcome 22 guidance’.  
  • The ‘National protocol on reducing criminali­sation of looked-after children’. 

The CPS’s public interest test for prosecuting children states that, in addition to the standard considerations when prosecuting a child, the ‘circumstances of the individual child’ may be highly relevant. ‘The decision to prosecute must only be taken after a full review of the case and the background information, including information concerning the suspect provided by the Youth Justice Service, police, or local authority. Failure to show that the Code and the legal guidance has been followed and properly applied to all the information on the case may result in the decision to prosecute being quashed.’ 

For example, the CPS ‘Children as suspects and defendants’ guidance quotes R (on the ap­plication of E, S and R) v DPP [2011] EWHC 1465 (Admin)  where a multi-agency strategy group had formed the view that prosecution was not in the best interests of any of the children involved in allegations of child sexual offences by a child on her younger siblings. Despite the findings of the strategy group, the CPS decided to proceed to prosecution. The High Court disagreed and over­turned the decision to prosecute.

The CPS ‘Children as suspects and defendants’ guidance states that the CPS should consider: 

  • The circumstances of the child – and that the welfare of the child remains paramount
  • First time entrants (FTE)
  • The physical and mental health of the child
  • Children who are looked after (CLA)
  • Behaviour management policies
  • Adverse childhood experiences (ACEs)
  • Special educational needs and disabilities (SEND) 

Practitioners should expand on all the points above that are relevant when making written rep­resentations to the CPS with regard to the welfare of a child who is facing prosecution. 

Additional representations to the CPS if criminal or sexual exploitation arises 

There are additional CPS considerations where criminal and/or sexual exploitation arises: see ‘Human trafficking, smuggling and slavery’ . This CPS guidance sets out the following four-stage assessment for prosecutors: 

  1. Is there a reason to believe that the per­son is a victim of trafficking or slavery? If yes, move to Question 2. If not, you do not need to consider this assessment further.
  2. Is there clear evidence of a credible common law defence of duress? If yes, then the case should not be charged or should be discontinued on evidential grounds. If not, move to Question 3.
  3. Is there clear evidence of a statutory de­fence under s45 Modern Slavery Act 2015? If yes, then the case should not be charged or should be discontinued on evidential grounds. If not, move to Question 4.
  4. Is it in the public interest to prosecute? This must be considered even where there is no clear evidence of duress and no clear evidence of a s45 defence or where s45 does not apply (because the offence is excluded under Sched 4). Prosecutors should consider all the circumstances of the case, including the seriousness of the offence and any direct or indirect compul­sion arising from their trafficking situation: see R v LM & Ors [2010] EWCA Crim 2327 . 

Exploitation – welfare and safeguarding duties owed to children at risk

In 2024, Action for Children commissioned ‘The Jay review of criminally exploited children’.  The review found too many exploited children experience a criminal justice response as the primary intervention, rather than a child protection response. 

The UK government defines ‘child criminal exploitation’ as: 

‘Child Criminal Exploitation … occurs where an individual or group takes advantage of an imbalance of power to coerce, control, manip­ulate or deceive a child or young person under the age of 18. The victim may have been crim­inally exploited even if the activity appears consensual. Child Criminal Exploitation does not always involve physical contact; it can also occur through the use of technology.’ 

The Ministry of Justice ‘County lines exploitation’ guidance  requires those involved in the system to reconceptualise children who would have been labelled as offenders as victims, coerced into the commission of crime. 

Traditional ideas of what it means to be a victim of exploitation are binary: there is a perpe­trator and there is a victim. This approach often fails to capture the complex and multifaceted lived realities of young people affected by exploitation, where a child who has been exploited might also be involved in exploiting others.  Binary practice conflicts with a ‘child first’ approach by seeing children as either ‘victims’ or ‘offenders’ as op­posed to looking at the ‘whole child’ and examin­ing the full complexities of their lives, needs and experiences. 

Any child in contact with the criminal legal system may have been exploited. It is therefore good practice to treat every incident as if there may have been some exploitation. There are additional welfare and safeguarding duties owed to children that do not exist when representing adults. Some children may not perceive them­selves as victims or would prefer to take the crim­inal legal system response than the risks involved in revealing their exploitation. 

‘Working together’ states: ‘All children, in­cluding those who may be causing harm to others, should receive a safeguarding response first and practitioners should work with them to under­stand their experiences and what will reduce the likelihood of harm to themselves and others.’  

Practitioners must also be aware that children are more suggestible and so less likely to under­stand the legal ramifications of not telling the truth to their lawyer. 

Family and other trusted adults may be suspicious that a child is being exploited. It is good practice to try and find out before a child is criminalised. 

‘Working together’ advises practitioners how to recognise ‘actual or likely significant harm’: 

  1. ‘Practitioners are alert to potential indicators of abuse, neglect, and exploitation, and listen carefully to what a child says, how they be­have, and observes how they communicate if non-verbal (due to age, special needs and/or disabilities, or if unwilling to communicate).’
  2. Practitioners take care to ensure that chil­dren know what is being discussed about them and their family where this is appropri­ate. They ask children what they would like to happen and what they think would help them and their family to reduce the likelihood of significant harm, including where harm is tak­ing place in contexts beyond the family home. Practitioners listen to what children tell them.
  3. Practitioners engage parents and the family network, as appropriate, in the discussions, recognising previous involvement with agen­cies and services may influence how they engage. Practitioners encourage parents and families to express what support would help them to reduce significant harm. 

‘Safeguarding children who may have been traf­ficked’, issued by the Department for Education and the Home Office, states at paragraph 4.14: 

‘It is important that officers investigating offences committed by children who may have been trafficked are able to recognise and identify such cases. The child’s welfare needs and safety should be taken into account and appropriate safeguarding processes should be followed.’ 

The Child Safeguarding Practice Review Panel first national review on children at risk from exploitation  suggested practitioners responsible for protecting children consider the following: 

  1. Moving children and families is a very ef­fective short-term measure, providing an immediate reduction in risk and breathing space. It involves either the whole fami­ly moving or the child going to stay with another family member. There must be a clear and consistent plan for supporting the child and managing risk in the new location.
  2. A ‘threat to life’ warning by the police can be helpful when quick and effective inter­vention is required to protect children.
  3. Parents were more confident about the support and interaction provided by youth workers and youth offending teams than they were with social workers and the police. There was more potential for an adversarial relationship between children and families with police and social work­ers than there was between children and families and youth workers and youth offending teams. More trust is afforded to those working in youth services. Youth offending teams and youth workers tend­ed to have more skills and experience in working specifically with adolescents. 

NPCC guidance states that the safeguarding ‘threshold’ for ‘significant harm’ will effectively always be met where a child is identified as being potentially at risk of gang exploitation.’ 

Practical tips 

  1. Consider whether a child accused of a crime may have been exploited into committing the alleged offence.
  2. Carefully assess the risk of re-traumatising a child in requiring them to recount details of their exploitation against the need to get an account from them. Certain information may be availa­ble from others such, as YJS or other workers.
  3. Collect written reports and views of carers and professionals regarding exploitation that may support written representations to the CPS for arguments in court or for Reasonable Grounds (RG) or Conclusive Grounds (CG) decisions to be made by the Single Competent Authority (SCA). See the YJLC legal guide ‘Child criminal exploitation’  for more information.
  4. Be aware that some children do not see themselves as victims of exploitation and believe the exploiters are friends or allies.
  5. Be aware that some children do not want to claim themselves to be victims of exploitation as their fear of reprisals is greater than the fear of the criminal legal system.
  6. For criminal lawyers, there are additional considerations as to their child client’s right to con­fidentiality and their safeguarding responsibilities to children. This can only be decided on a case by case basis. See the Solicitors Regulation Authority (SRA) regulations. 
  7. Remember, any child who is potentially being exploited reaches the safeguarding threshold for ‘significant harm’.
  8. If exploitation is to be advanced, consider protections that might be available, such as: bail outside of the area; a transfer of proceedings to a court outside the area; seeking an anonymity order throughout the legal process; or support for the child from a trafficking support worker, for example, consider support from Barnardo’s, Catch22, Abianda or The Children’s Society. 

Welfare and safeguarding considerations by the courts

The courts have specific welfare duties to children set out in section 44 of The Children and Young Persons Act 1933, which states at section 44(1 ): ‘Every court in dealing with a child or young per­son who is brought before it, either as an offender or otherwise, shall have regard to the welfare of the child or young person’. 

The courts have a further duty to have a regard to the welfare of the child when they are considering remand. This was added to the leg­islation in 2022 and embedded into the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) remand criteria (outlined in ss98–102 LASPO). With regards to remands of children oth­er than bail, section 91(4A) states: ‘Before deciding whether to remand a child to youth detention accommodation … the court must consider the interests and welfare of the child.’ 

Reporting restrictions for children are subject to welfare considerations. The ‘Youth Court Bench Book’ is clear that ‘the power to dispense with anonymity should be exercised with great care and caution as identification may conflict with the welfare of the child or young person. It should not be seen as additional punishment.  Additionally, for children appearing in the adult court, the court must have regard to their welfare when consid­ering any publication about the matter before the court. 

Adaptations and modifications to the procedure 

The ‘Youth Court Bench Book’ states that it now generally accepted that for justice to be done for a child ‘a radical departure from the traditional style of advocacy will be necessary’.  ‘The court is ex­pected to adapt normal trial procedures and take every reasonable step to facilitate the participation of a child or young person. Flexibility is key, as is the welfare of the individual.’  

Before the court remands a child to youth de­tention accommodation they must, first, consider ‘the interests and welfare of the child’, these crite­ria are set out in sections 98 and 99 of LASPO and in the YJLC legal guide ‘Court bail and remand’.  What should be addressed in detail is what welfare really means. 

When sentencing a child, a court must have regard to the principal aim of the Youth Justice System (to prevent offending by those under 18) and the welfare of the child or young person. This is stated in the Sen­tencing Council’s ‘Sentencing children and young people’ guideline.  

Practitioners should set out the criteria from the ‘Working together’ definition of welfare  for the court to ensure the criteria are given consideration and acted on: 

  • providing help and support to meet the needs of children as soon as problems emerge
  • protecting children from maltreatment, wheth­er that is within or outside the home, including online
  • preventing impairment of children’s mental and physical health or development
  • ensuring that children grow up in circum­stances consistent with the provision of safe and effective care
  • promoting the upbringing of children with their birth parents, or otherwise their family network through a kinship care arrangement, whenever possible and where this is in the best interests of the children
  • taking action to enable all children to have the best outcomes in line with the outcomes set out in the Children’s Social Care National Framework. 

Remanded or sentenced children

Children on remand 

Where a child is refused bail but is remanded to local authority accommodation (RLAA) under LASPO, that child is deemed to be ‘looked after’. As the local authority is providing accommodation for the child, it will owe the same duties as for any other looked after child. 

The same applies to a child remanded to youth detention accommodation (YDA) – they become looked after by their designated local authority.  As with RLAA, the local authority will owe duties under section 22 of the Children Act 1989.  

Where it is not obvious which local authority is responsible for a child, the court can designate a local authority. That local authority owes the same safeguarding and welfare duties that are owed to any other looked after child. 

If a remand lasts for 13 weeks or longer, the child or young person becomes eligible for leaving care services. This means that they should get advice and support for particular needs, including accommodation and financial assistance (includ­ing for higher education) by the responsible local authority. 

Once a child is looked after, the local authority has a duty to make services available to the child.  This includes plans for the child’s health, care and educational needs. There is statutory guidance for local authorities about the care planning and placement of such children.  

Under section 22(1) of the Children Act 1989, the local authority has a responsibility: 

  • to provide accommodation for the child (s20(1))
  • to safeguard and promote the child’s welfare (s22(3)(a))
  • to maintain the child in other respects (finan­cial and emotional support) (s23)
  • provide visits from a local authority social worker at least every 6 weeks
  • to promote the child’s educational achieve­ment and avoid disrupting education, in par­ticular at key stage 4 (s22(3A)). 

In carrying out their functions in relation to looked after children, local authorities must have regard to a set of corporate parenting principles set out in section 1 of the Children and Social Work Act 2017. 

Where a child is admitted to a mental health facility, practitioners should make a referral to local authority children’s social care. 

Adultification and safeguarding

Adultification is the practice of treating certain children as older than they are. This is often inter­woven with racism. It can manifest as seeing Black boys as being more likely to be criminals. For Black girls, it can manifest as being seen as more sexualised and aggressive than their white peers of equivalent ages. 

Stereotypes about Black children may deter appropriate safeguarding and professionals may disregard the innate vulnerability of all children. 

Adultification bias can be identified by the language used to describe children, such as a ‘streetwise’, ‘resilient’ and ‘mature’. For Black boys, some of these stereotypes include the image of the ‘criminal’, ‘thug’ and ‘deviant’ (Smiley and Fakunle, 2016 ). Such language may assume children have more agency and capacity to safe­guard themselves.  

Understanding this bias is crucial, with Black boys being at an increased risk of extrafamilial harm. 

Adultification erodes children’s rights and leaves them at a greater risk of harm due to a dereliction of safeguarding duties by individuals and organisations. When adultification is pres­ent, child welfare is not of paramount concern and professional inquiries and interactions can actively and passively cause harm. Adultification can lead to a victim-blaming narrative that implies Black children are somehow complicit in the harm experienced. Practitioners should be alert to the potential for adultification and call it out if they see it to ensure children are protected in the way they are entitled to be.

Hackney safeguarding review – Child Q

‘In reflecting on how adultification bias might have been evident in practice with Child Q, this can be seen in the fact that she received a largely criminal justice and disciplinary response from the adults around her, “rather than a child protection response”…..The review believes there to be a high level of probability that practitioners were influenced in this regard. The disproportionate decision to strip search Child Q is unlikely to have been disconnected from her ethnicity and her background as a child growing up on an estate in Hackney.’ 

Children placed in Scotland, Wales or Northern Ireland

Sometimes, children might be placed by the local authority or family members in different parts of the UK. Practitioners may need a better under­standing of the child protection systems in those jurisdictions. The following guidance is useful for reference: 

  • ‘Child protection system in Scotland: legis­lation and guidance’, last updated January 2024 
  • ‘Child protection system in Wales: legislation and guidance’, last updated April 2024 
  • ‘Child protection system in Northern Ireland: legislation and guidance’, last updated July 2023. 

 

 

YJLC legal guides


• ‘Child criminal exploitation’
• ‘Court bail and remand’
All YJLC legal guides are available at https://bit.ly/426ayAF

 

Authors

Written by Shauneen Lambe in collaboration with Katya Moran and Laura Cooper at the Youth Justice Legal Centre. With thanks to Chris Callender.

Safeguarding Welfare Legal guides
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The materials on the YJLC website are for general information purposes only and do not constitute legal advice. While reasonable care is taken to ensure accuracy, the materials may not reflect the most current legal developments. YJLC disclaims liability for actions taken based on the materials. Always consult a qualified lawyer for specific legal matters.

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