Children arrested in London will continue to be held in police cells despite a court ruling it was unlawful for councils not to have a reasonable system in place to provide secure accommodation.
Legal charity Just for Kids Law made the warning after a bringing a successful appeal against a High Court finding that Waltham Forest council had acted lawfully when it failed to provide secure accommodation for a 16-year-old boy following a police request in December 2018.
Last month, the Court of Appeal ruled the council had acted unlawfully because it did not have a reasonable system in place to provide secure accommodation for arrested children in response to a police request (see box on what the law says).
In doing so, it found that it was “the norm rather than the exception” for children to be held in police cells overnight in London because of the shortage of secure beds. Evidence submitted to the court showed that, of 342 requests by the police for accommodation from London boroughs in 2018, just two were granted. There are no secure children’s homes in London with the nearest being in Hailsham, East Sussex.
The charity told Community Care that despite its legal win, it is likely that children in London will still be held in police cells overnight.
“Unfortunately, until there are accessible secure accommodation spaces made available, children will continue to be held in police cells,” a spokesperson for the charity said.
“However, now that it has been found that this puts all London local authorities in breach of the law when it happens, we’re going to seek to put pressure on local authorities to comply with their legal duties to provide appropriate alternative accommodation for children who are detained by the police.”
Waltham Forest said it intended to appeal the judgment but, along with other London boroughs, had put a proposal to the Department for Education for two possible sites on which secure accommodation could be built in the capital.
What the law says
Section 38(6) of the Police and Criminal Evidence Act (PACE) 1984 states: “Where a custody officer authorises an arrested juvenile to be kept in police detention […] the custody officer shall […] secure that the arrested juvenile is moved to local authority accommodation.”
It allows exceptions when it is “impracticable for [the custody officer] to do so” or when “no secure accommodation is available and that keeping him in other local authority accommodation would not be adequate to protect the public from serious harm from him”.
Section 21(2)(b) of the Children’s Act 1989 states: “Every local authority shall receive, and provide accommodation for, children in police protection whom they are requested to receive […] under section 38(6) of the Police and Criminal Evidence Act 1984.”
A key judgment, R (M) v Gateshead Metropolitan Borough Council , found that the duty to respond to the police request under PACE falls to the local authority that receives it, not the one in which the child is detained.
It also held that it was up to the local authority to determine what arrangements it would make to provide secure accommodation; there was no absolute duty to provide secure accommodation on request from the police.
In a passage quoted by the Court of Appeal in the latest case, the court in Gateshead found: “[A] court should be slow to strike down as unlawful arrangements that have been made by local authorities. In my view, they should do so only if satisfied that an authority has made no arrangements at all, so that they can never provide secure accommodation when it is requested, or where the arrangements that have been made are ones that could not have been made by a reasonable authority, mindful of the need to avoid having children detained in police cells if at all possible (emphasis added).”
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Council to appeal
Waltham Forest council said it intended to appeal the court ruling but said it had worked with other London boroughs to find appropriate sites for secure homes in the capital.
The Department for Education is providing £24m during 2021-22 in capital funding to maintain and expand secure home capacity across England, where there are currently only 13 homes.
“The nearest overnight secure accommodation found for the 17-year-old boy in this case was ninety miles,” said a council spokesperson. “As he was expected in court the next morning this was both impractical and not in his interests.
“The national scarcity of secure accommodation is both longstanding and something that needs resolving in the interests of young people. We have been working with other local authorities in London to try and find a permanent solution to this issue and have put a proposal to the government of two sites in the capital that will resolve this issue and ensure young people are supported during what is a traumatic time in their lives.
“We will be lodging an appeal to this ruling in due course.”
When asked by Community Care, the Department for Education did not say whether children would continue to be held in prison cells overnight following the ruling.
A government spokesperson said: “Every young person in care deserves to live in accommodation that meets their needs and keeps them safe and local authorities are responsible for providing sufficient and suitable accommodation for the children they look after.
“We are developing a new capital funding programme to aid local authorities to establish new children’s homes. We will also provide a further £24m this year to start a new programme focused on maintaining and increasing the number of secure children’s home places available, so more children are in high-quality, safe homes close to their families and support networks.”