Why do children always get left behind in the rush to manage and curb the ever-increasing adult prison population?
Children were excluded from the end of custody licence release arrangements introduced by the previous government. SDS40 arrangements only applied to children convicted of more serious crimes and serving longer sentences, so that children on Detention and Training Orders of the same length for less serious offences would have spent longer in prison.
Legislation making most recalls where the person was on a sentence of less than 12 months restricted to fixed terms of 14 days, also excluded children. The rationale for this was set out in the Explanatory Memorandum as follows:
“Offenders under the age of 18 at point of recall who are serving sentences of less than 12 months. Offenders under 18 years old almost always serve Detention and Training Orders and if they breach the conditions of these orders they will return to court for a decision regarding recall – it is not a Secretary of State discretion.
Children who could be affected by this order would be those sentenced under Section 250 of the Sentencing Code (youths convicted of certain serious offences) and receive a custodial sentence of under 12 months, however this would only happen in very rare cases where there were significant mitigations (e.g., significant learning disabilities) which reduce the sentence length. Given these are very rare cases, we consider it would be in the youth offender population’s best interest to retain all options for recall in order to respond appropriately to the individual child’s risk and consider what length of recall would best support the child’s rehabilitation.
Custody is regarded as the last resort for children, which means that children in youth custody have generally committed a serious offence and are generally high risk.”
This explanation fails to acknowledge the central role of the welfare principle when it comes to the detention of children. The rules they relate to make adequate provision to exclude high risk cases. I am not aware of any research to support the claim that children sentenced to less than a year represent a higher risk than adults sentenced for the same period. Just because children’s cases are rare does not mean they should be overlooked or excluded from a policy that advantages everybody else.
Now, the latest emergency measure to ease pressure on the prison estate by removing parole board oversight of many recalls also expressly excludes children. The new proposals relate to people on sentences of between one and four years, and will see standard recalls replaced with fixed term recalls of 28 days.
The draft Statutory Instrument states in terms:
The [relevant] conditions…are—
“(a)“that the person is aged 18 or over;
The consequence of this, is it a 17-year-old child, serving a three year custodial sentence who is managed at MAPPA level one and who has been released and recalled to prison will have to wait for the parole board to release them again, whereas an 18-year-old in exactly the same situation will be automatically released as soon as the new law comes into force or when they have served 28 days since the recall began, whichever is earlier.
No rationale has been provided for excluding children on the same sentences and the same circumstances as adults from this provision.
It totally flies in the face of the requirement that children should serve the shortest appropriate period of time in custody (see Article 37 of the UN Convention on the Rights of the Child and paragraph 6.34 of the Sentencing Council’s guideline on Children and Young People).
It could also have a huge detrimental impact on children’s welfare, which is, of course the primary aim of the children’s justice system. This is because children are entitled to enhanced welfare rights in the community from children’s social care before they turn 18. Keeping them in custody for longer may deprive them of enhanced welfare support packages. In some cases it may also deprive children of the opportunity to accrue important leaving care rights that will provide them with support into their mid 20s.
It is wrong that changes made out of expedience in response to the prison capacity crisis should disadvantage children and lead to inequitable outcomes compared to adults. Government must rectify this to avoid a situation where it is in breach of our domestic and international legal obligations to ensure that children are detained for the shortest possible time.