Reducing the criminalisation of children in care: What can a criminal lawyer do? Laura Cooper Co-head of the Youth Justice Legal Centre, Just For Kids Law

Just for kids law Mission: To help children achieve meaningful futures by breaking down the barriers that stand in their way. Just for Kids Law is led by the needs of its clients and will work for their welfare. Legal advice and representation Support, advice and advocacy in the areas of education, welfare, housing, employment and mental and physical health.

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OVERVIEW The importance of: 1 Challenging the necessity to arrest and detain the child. 2 Effective communication with the child 3 Making strong representations – from beginning to end 4 Ensuring reference to the law and guidance on criminalising children in care

NPCC: Child Centred Policing 2016 ‘We need to make every effort to avoid the unnecessary criminalisation of children in care, making sure that the criminal justice system is not used for resolving issues that would ordinarily fit under the umbrella of parenting. We need to work with our partners to improve our understanding of the child in care to improve outcomes for them.’

Necessity to arrest? When contacted by the police – ascertain if the detainee is a looked after child Challenge the necessity to arrest and detain Given their vulnerability and risk of trauma – can they be released to attend a voluntary interview Take the police through practical steps - suitability of available appropriate adult e.g. if care home Think about where they can they stay tonight

Effective communication Essential to establish rapport with the child and try to gain their trust Explain to the child what you are going to do and why Be aware of the high levels of language and communication difficulties, and mental health problems. Listen to the child, ask them how they are and tell them you are on their side – important to children that they feel they are believed Ensure children are aware of basic rights and entitlements and advocate on their behalf where necessary

Gather information GATHER as much information about the child and their background circumstances as possible by: Speaking to the child themselves Speaking to their social worker, care home and family (as appropriate) Obtaining any recent psychological and psychiatric reports Asking a child to sign a catch all authorisation form in order to obtain the information

Make Strong Representations WHAT TO INCLUDE Remind the CPS/police of:   The principal aim of the youth justice system which is to prevent offending by children and young persons (s.37(1) Crime and Disorder Act 1998); The duty to consider the the welfare and ‘best interests’ of the child in their decision making (Article 3(1) United Nations Convention on the Rights of the Child, s11 of the Children Act 2004 and Code for Crown Prosecutors, 4.14 (d)

Make Strong Representations WHAT TO INCLUDE: CPS guidance on offending behaviour in childrens homes The police are more likely to be called to a children's home than a domestic setting to deal with an incident of offending behaviour by an adolescent. Behaviour Management policy should be attached to advice on charge that is sent to CPS.   https://www.cps.gov.uk/legal-guidance/youth-offenders

Make Strong Representations WHAT TO INCLUDE: Crown Prosecution Service (CPS) 10 point check list for Offences in Children’s homes https://yjlc.uk/the- forgotten-10-point- checklist-the-decision-to- prosecute-offending-in- childrens-homes/

Ensuring reference to the law and guidance Other guidance and information: The Howard League Briefings: Ending the criminalisation of children in residential care

Ensuring reference to the law and guidance Other guidance and information: The Overarching principles – Sentencing Children and Young People (June 2017) Para 1.16 and 1.17 – reference to the over-representation of looked after children in the criminal justice system. National protocol on reducing unnecessary criminalisation of looked after children and care leavers. Failure to consider all the circumstances of the child may result in proceedings for judicial review: R v Chief Constable of Kent and Another ex parte L, R v DPP ex parte B (1991) 93 Cr App R 416 – any CPS decision should be made by a youth justice specialist. Consider liaising with family and community care lawyers about level of care and appropriateness of placements. Background information about the young person.

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