Child custody: an inappropriate measure for vulnerable children from disadvantaged backgrounds By Annahita Moradi

AB, a 16-year old boy, had a traumatic childhood. It consisted of him being physically and emotionally abused. He watched his father beat his mother and take an overdose; and his uncle die from an overdose. He was diagnosed with ADHD, Conduct Disorder, and PTSD. Let down by all those around him, he was in and out of care since he was a baby.

AB eventually ended up in prison, where, despite his pre-existing mental health diagnoses and extreme vulnerabilities, he endured over 100 days in segregation. Sometimes, he was locked in his cell for over 22 hours a day.

On 04 July 2017, the High Court declared his isolation as unlawful and in breach of Article 8 of the European Convention on Human Rights (AB v SSJ [2017] EWHC 1694 (Admin)). This was the result of the Howard League for Penal Reform’s legal challenge to Feltham YOI’s decision to isolate AB, and relentless campaigns against the use of segregation against children in custody.

Around the same time, the Sentencing Council published its new guidance on the application of sentencing principles and specific guidelines in cases involving youth defendants being sentenced from 01 June 2017.

The guidance emphasises that the primary purpose of the youth justice system is to prevent re-offending rather than to punish children, and it reiterates that custody is a last resort measure. The guidance also codifies the courts’ scope to consider child defendants’ socio-economic and familial backgrounds as mitigating factors.

Although this is just a guidance, Section 125 (1)(a) of the Coroners and Justice Act 2009 states that every court must follow the relevant sentencing guidelines. When sentencing youths therefore, the court must have regard to the new guidance.

The starting point for the court when sentencing is the seriousness of the offence (Paragraph 1.2). However, the guidance requires for the sentencing process to be child-focused. In other words, regard should be had to the child’s welfare, the likely effect of the sentence on the child, and the factors that may have contributed to the child’s offending behaviour.

Such factors include the child’s mental health issues, learning difficulties, susceptibility to self-harm and/or suicidal ideations, and immaturity (Paragraph 1.5). The courts should also consider the child’s background; including any exposure to abuse or neglect, offending by other family members, drugs and alcohol, discrimination, and negative experiences of authority (Paragraph 1.13). The child’s low education attainment can also be considered, as can their parents’ poor employment records. This recognises that children living in areas of acute social and economic deprivation in dangerous or negligent conditions are more susceptible to offending.

The guidance urges courts to always try to ensure that they can identify and respond to such factors. This is because the welfare of the child is paramount in sentencing proceedings, and it is the role of the sentencing judge to impose a sentence that will help the child to not re-offend. Courts must not lose sight of this principal aim, because punishment is not the primary purpose of youth sentencing.

In fact, the guidance emphasises that it is important to avoid criminalising children (Paragraph 1.4). This is not least because a criminal record will deprive the child, who might already be disadvantaged, of the opportunity to move on from crime towards education and employment (Paragraph 1.6).

If regard is had to these factors, then custody, in most cases, simply cannot be the answer to preventing re-offending and protecting the welfare of the child. In fact, custody can have the reverse effect. It can lead to the early manifestation of mental health conditions or exacerbate pre-existing ones. It can deprive the child of its domestic and international rights to education, development and adequate healthcare. It can expose the child to further trauma, abuse, and gang culture. All of which will set the child up to fail, in a never-ending cycle of offending, being arrested, sentenced, imprisoned, and released.

As Ken Clarke, the then Justice Secretary, put it on 13 July 2010: ‘There is and never has been […] any direct correlation between spiralling growth in the prison population and a fall in crime.’

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