Post-Charge Detention of Children decision flowchart
The National Appropriate Adult Network (NAAN) has updated its Post-Charge Detention of Children decision flowchart (Flowchart). The Flowchart reflects the legal procedure on the transfer of children refused police bail to local authority (LA) accommodation.
As part of the update, the NAAN has also highlighted a number of factors that contribute to the ongoing difficulties in transferring children from police cells to LA accommodation.
DETAILS
Once a child is charged with an offence, the police must decide whether to release or detain them prior to their first court appearance. Where a child is detained, the law states that they will usually be transferred to LA accommodation.
The system of police powers in this area is complex. Appropriate Adults (AAs) play a key role in ensuring that children’s rights are respected, particularly in relation to decisions to refuse post‑charge bail and the requirement to transfer children to LA accommodation. AAs should identify barriers to bail as early as possible, enabling the Youth Justice Service and Local Authority to fulfill their responsibilities to liaise with the police to address concerns through bail information, supervision and support and provide appropriate accommodation. AAs also have a statutory duty to safeguard the interests of children who have been detained by the police. This includes supporting children to understand and exercise their rights, advising and assisting them when they are asked to provide information, ensuring that the police are acting properly and fairly, and facilitating effective communication between the child and the police (while respecting the child’s right to remain silent).
The Flowchart aims to support AAs and youth justice practitioners to navigate the legal framework governing the post-charge detention of children, to ensure that children’s rights are upheld and that they are not incorrectly detained in police cells.
COMMENTARY
The NAAN flowchart is a useful aid to lawyers representing children at the police station as well as appropriate adults, Youth Justice Service Practitioners and representatives from the Local Authority.
The accompanying guidance that NAAN provides with the flowchart is also helpful to all practitioners involved in supporting children through the post-charge detention stage. It is important for AAs and youth justice practitioners to bear in mind that the police may, for example, take a more restrictive interpretation of the legal framework governing post-charge detention of children. In particular, practitioners should be prepared for situations where the police may, as identified by the NAAN:
- ask for a secure environment when it is not justified;
- interpret “impracticable” in the legislation closer to “very difficult” than “impossible”;
- argue that available accommodation is too far away and will not allow a proper rest period and would therefore not be in the child’s best interests; or
- interpret the legal exceptions to the transfer requirement as suggesting that Parliament did not think police cells were that bad for a child.
AAs and youth justice practitioners should be aware of these potential issues and be ready to challenge them. Early engagement can prevent unnecessary refusals of bail and reduce reliance on post‑charge detention and PACE transfers.
Practitioners should also bear in mind that, although there are clear legal duties on both the police and LAs to prevent children from being held in police cells after charge and before court, these duties have been routinely and systematically disregarded over many years. The Flowchart reinforces that early involvement of AAs and the Youth Justice Service is critical and serves as a helpful tool when dealing with the post-charge detention of children. Where there are concerns that children are being wrongly detained overnight by police practitioners should also consult the Concordat on Children in Custody and the Youth Remand Concordat.