- In their dealings with children, the law mandates that public authorities act in a manner that places at the heart of their decision-making the child’s best interests. The purpose of this short note is to consider to what extent remanding unsentenced children, particularly during the Covid-19 pandemic, satisfies this imperative in the light of the recent judgment of the Court of Appeal in Manning[i] and what factors might be considered when making or opposing an application for remand to ensure compliance with this overriding objective.
The legal framework
- Unless the statutory conditions under the Bail Act 1976, Schedule 1 are met, there is a presumption in favour of bail.[ii] The decision to remand a child is always discretionary and where a discretionary power is liable to interfere with a fundamental right, such as the right to liberty, the court should exercise that discretion with “anxious scrutiny”.[iii]
- The Children and Young Persons Act 1933,[iv] section 44 provides that:
“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.” [emphasis added].
- The rights and best interests of children are protected in a number of international and European legal instruments, including the UN Convention on the Rights of the Child 1990[v] and Charter of Fundamental Rights of the European Union,[vi] which set out in clear terms that in all actions relating to children by public bodies, including courts of law, the child’s best interests must be a “primary consideration”.
- The Manning judgment was handed down by the Court of Appeal on 30 April 2020 at the height of the pandemic and whilst lockdown restrictions were in force in England and Wales.
- The Court of Appeal considered the impact of Covid-19 in the context of a custodial sentence and said as follows:
“41. We would mention one other factor of relevance. We are hearing this Reference at the end of April 2020, when the nation remains in lock-down as a result of the Covid-19 emergency. The impact of that emergency on prisons is well-known. We are being invited in this Reference to order a man to prison nine weeks after he was given a suspended sentence, when he has complied with his curfew and has engaged successfully with the Probation Service. The current conditions in prisons represent a factor which can properly be taken into account in deciding whether to suspend a sentence. In accordance with established principles, any court will take into account the likely impact of a custodial sentence upon an offender and, where appropriate, upon others as well. Judges and magistrates can, therefore, and in our judgment should, keep in mind that the impact of a custodial sentence is likely to be heavier during the current emergency than it would otherwise be. Those in custody are, for example, confined to their cells for much longer periods than would otherwise be the case – currently, 23 hours a day. They are unable to receive visits. Both they and their families are likely to be anxious about the risk of the transmission of Covid-19”[vii] [emphasis added].
- The judgment of the Court of Appeal adds a new gloss to the existing framework underlying decisions to remand an unsentenced person, particularly, I suggest, a child and that gloss is the following consideration: is detention a proportionate endeavour when weighed against the aims pursued?
Coronavirus, children and custody
- The concerted effort to reduce the incidence and transmission of Covid-19 within the prison estate, including young offender institutions, whilst important, means that children are being subjected to more stringent restrictions on their liberty. Such restrictions include: the suspension of visits, suspension of education and training programmes, and confinement for longer periods of time currently twenty-two or more hours a day.[viii]
- In ordinary times, detention of a child can have staggering consequences for their safety and development: “restraint, assaults and self-harm amongst children [in custody] is rising”.[ix] However, the harsher conditions precipitated by the pandemic, are likely to have a particularly destructive effect on the health and social development of detained children with fears of increased incidences of mental illness and self-harm to name only two.[x]
Can remand of unsentenced children be justified during a pandemic?
- The starting point must be that each case turns on its own unique facts and unquestionably there will be circumstances that necessitate applications to remand an unsentenced child. However, the decision to seek to remand a child at the height of a deadly pandemic demands increased scrutiny.
- As was indicated at the start of this note, the paramount consideration when dealing with a child – in the criminal justice system or otherwise – is the child’s welfare. In the context of criminal proceedings, however, the situation is complicated by the pursuit of an equally important and competing aim – ensuring the safety of the public.
- How do we balance those interests; what are the relevant considerations? First, set the parameters: what factors are pertinent to an assessment of a child’s welfare and best interests and what principles underline the presumption in favour of bail and any exceptions thereto? Second, consider the relative harms: bail versus remand. Can the public be protected otherwise than by remanding the child? Third, the overriding context.
- Addressing the first issue. Welfare is not defined in the Children and Young Persons Act 1933. In the context of family law proceedings, the Children Act 1989 outlines a number of factors relevant to the assessment of what is in the child’s welfare; the so-called Welfare Checklist. These factors, in my view, provide a reasonable starting point when assessing the merits of an application to remand a child and should be at the forefront of the Crown’s mind.
- The Welfare Checklist includes a number of factors, but the following appear to me to be most relevant: (a) the child’s physical, emotional and educational needs; (b) the likely effect on the child of any change in his circumstances; (c) the child’s age, sex, background and any characteristics of his which the court considers relevant; (d) any harm which the child has suffered or is at risk of suffering; (e) the range of powers available to the court in the proceedings in question.[xi]
- What then of the principles underlining the presumption in favour of bail and the exceptions thereto? The principle of habeas corpus insures against arbitrary detention. Bail should only be refused where it can be justified. Such justifications are expressed in the first Schedule to the Bail Act and include, in the context of a child, that if released on bail they would: (a) fail to surrender to custody; or (b) commit an offence; or (c) interfere with witnesses or obstruct the course of justice; or (d) the child should be kept in custody for their own welfare.
- The second and third issues are related: harm and context. Can the court justify tipping the scale in favour of remand where there is a demonstrable risk to the physical and mental well-being of the child? Can the perceived risk posed by the child to the public at large be managed in the community? Bail conditions such as electronic monitoring might assuage these fears and allow this question to be answered in the affirmative.
- Applying the welfare criteria set out herein and considering the justifications for refusing bail, not only does the pandemic tend towards forcing a breach of the welfare principles, the community response to the pandemic including the imposition of lockdown measures[xii] would tend to mitigate, or indeed undermine, arguments in favour of refusing bail (particularly any submissions based on the assertion that remanding a child to custody would protect their welfare).
- It must not be forgotten that an unsentenced child is exactly that a child that is yet to be sentenced and as the Howard League points out “in the year ending March 2019, over two thirds of children remanded to youth detention accommodation did not subsequently receive a custodial sentence.”[xiii]
- A child in lockdown pursuant to the coronavirus regulations is subject to the same restrictions on his liberty as a child remanded to youth detention accommodation in that he is not able to roam freely the world at large. However, unlike a detained child, a child on bail would not be confined to a cell, alone for in excess of 22-hours a day, a distinctly harsh punishment, he will have access to physical and mental health support, and the added burden of the risk of exposure to Covid-19 will be somewhat mitigated.
- It is difficult to justify how a positive decision to detain a child in near solitary confinement owing to the devastating impact of a global pandemic in circumstances where that child when sentenced may not receive a custodial penalty could be deemed a proportionate step with the child’s best interests at heart.
- As I set out at the start of this note, the gloss of proportionality prompted by Manning demands of us keen consideration of the potentially significant impact the Covid-19 pandemic will have on those detained in the prison estate, especially children, and the potential for Covid-19 to enhance substantially the punitive effect of imprisonment beyond that which justice demands.
ADAM R. KEENAGHAN
2 June 2020
[i]  EWCA Crim 592.
[ii] Bail Act 1976 (as amended), section 4(1): “A person to whom this section applies shall be granted bail except as provided in Schedule 1 to this Act.” Such exceptions include, in the case of child, remand to protect the child’s welfare.
[iii] See: Bugdaycay v Secretary of State for the Home Department  1 AC 514, per Bridge LJ.
[iv] As amended.
[v] Article 3(1).
[vi] Article 24(2).
[vii]  EWCA Crim 592 at  per Burnett LCJ.
[viii] May Bulman, “Calls to release children in custody as coronavirus regime change could ‘drive up self-harm’” (The Independent, 28 March 2020) https://www.independent.co.uk/news/uk/home-news/children-prison-coronavirus-release-youth-custody-a9430936.html.
[ix] Prison Reform Trust, “Prison: The Facts. Bromley Briefings Summer 2019” http://www.prisonreformtrust.org.uk/Portals/0/Documents/Bromley%20Briefings/Prison%20the%20facts%20Summer%202019.pdf, page 13.
[x] The charity Article 39 and others wrote to Justice Secretary, Robert Buckland QC MP expressing their concerns for the physical and mental well-being of detained children during the pandemic. See: Article 39, “Joint call for safe release of child prisoners” (27 March 2020) https://article39.org.uk/2020/03/27/joint-call-for-safe-release-of-child-prisoners/.
[xi] Children Act 1989, section 1(3).
[xii] The Health Protection (Coronavirus, Restrictions) England Regulations 2020, as amended.
[xiii] Howard League for Penal Reform and Garden Court Chambers, “Ending the Detention of Unsentenced Children During the Covid-19 Pandemic: A Guide for Practitioners” (May 2020), page 2.