How to manage bail and remands
Information on what happens when a child is arrested, including advice and what to consider at the police station, appropriate adults and when a child appears in court.
Bail and remand processes start in the police station when a child is arrested. Following interview, the police will decide how to dispose of the case, which includes:
- taking no further action
- releasing under investigation
- referring the child for an out-of-court disposal
- bailing, or detaining them for the next available court
- charge
Bail and remand services in court should:
- identify children who could be released on bail with support (if other bail options and conditions are not appropriate)
- support children who are released on bail, or who are remanded prior to sentencing
This can be a very stressful time for children and their families, as it can be a daunting experience to appear in formal proceedings irrespective of any prior involvement in the system or attendance at court. Youth justice services (YJSs) should offer support and advice to children and their families; and have a statutory duty (under the Crime and Disorder Act 1998) to offer bail and remand services which are bespoke to the child’s individual circumstances and objections to bail. This also provides the opportunity to establish relationships with children who may later receive a court order.
Bail and remand services should ensure that children:
- are detained by police for the minimum necessary time
- are not held in a police cell overnight unnecessarily
- are not subject to unnecessary or inappropriate police bail
- attend court as required
- understand the requirements of court bail, any conditions attached and what is expected of them if they receive a bail supervision and support condition
- have maximum access to community support which are credible to the court, so that children are only remanded in custody where the case meets the tests set out in the The Police, Crime, Sentencing and Courts Act 2022
- are supported to reduce the likelihood of offending on bail and future attendance at court
Children from some ethnicities, particularly those that are Black, Mixed, Gypsy, Roma and Traveller as well as children looked-after are significantly overrepresented amongst those remanded into custody. Research on remand and sentencing decisions has shown that Black children receive harsher sentences for comparable offences than White children. When remanded into custody, Black children are more likely than White children to go on to receive a custodial sentence and you have a role in challenging this disproportionality.
You should regularly review and analyse data on the children remanded in your area by ethnicity and whether they are known to children’s services. You should then report this to court user groups. If there is an overrepresentation of any group in your area, you should discuss it at your YJS management board and set in place measures to reduce it.
Local authorities have a statutory duty to coordinate appropriate adult services. This applies:
- at all times, in and outside normal working hours, including evenings, overnight, weekends and bank holidays
- to children from the local authority’s area, and to children who are from outside of their home area who are interviewed by local police
The appropriate adult role was created by the Police and Criminal Evidence Act 1984 and its associated codes of practice known collectively as ‘PACE’. PACE sets out the powers and duties of the police, the rights of people detained in a police station or attending a voluntary interview, and the role and function of the appropriate adult.
When the police interview a child (under 18 years of age) at a police station they must arrange an appropriate adult. Anyone who appears to be under 18 years where there is no other evidence to suggest otherwise, must be treated as a child.
PACE Code C 1.7 defines who may act as an appropriate adult. They can be a:
- parent
- guardian
- representative of the organisation responsible for the child’s care
- social worker
- responsible person aged 18 years or over
An appropriate adult may not be a police officer or other police employee. Appropriate adults are not subject to police vetting, but enhanced DBS checks should be undertaken for appropriate adults working with children. The appropriate adult should be someone in whom the child can have confidence; and who will advise them effectively. A person cannot be the appropriate adult if they might be a suspect, victim, witness or otherwise involved in the investigation, or have received an admission of guilt prior to attending. An estranged parent to whom the child objects should not be the appropriate adult.
The police should in the first instance contact the parent/carer and ask them to attend the police station. The appropriate adult role can be challenging for parents/carers, and explaining the role is a police responsibility. However the youth justice service (YJS) may contact parents/carers to offer support in being an appropriate adult, such as by providing telephone advice or sharing this video.
If it is not possible for a parent to attend, the local authority is required to provide the service. This is generally through the YJS in normal working hours and through the local authority emergency duty team outside of office hours. The youth justice service can choose how to meet its statutory duty. For example, they can provide appropriate adults function, work in partnership with emergency duty teams, commission a service, or combine approaches. Appropriate adults can be employed team members, sessional staff or volunteers, but should be trained/qualified to national standards.
The appropriate adult is required to be involved:
- when the child is informed of their rights
- whenever the child’s consent is required
- during a strip or intimate search
- during the police interview
- when fingerprints or samples are taken
- when the disposal decision is being made regarding further action
- when the child takes part in identification procedures
The child also has a right to speak to their appropriate adult, in private, at any time.
Children who are detained by the police should also have a legal representative to advise and be present during the police interview. The role of the appropriate adult is distinct and different from this. The Howard League for Penal Reform and the Youth Justice Legal Centre have produced a step-by-step guide for lawyers in recognition of the particular assistance that children who are looked-after may require at the police station. The appropriate adult has the right to ask for a solicitor to attend even if the child has declined legal advice, if they consider it to be in the child’s best interests.
An appropriate adult is present to ensure that:
- the child is treated in accordance with the PACE Codes of Practice
- the child’s welfare is safeguarded
- the child is treated fairly
- representations can be made on the child’s behalf
- communication between the child and the police is facilitated so that they understand what is happening
Appropriate adults should be prepared to advocate on the child’s behalf and be proactive in their engagement with the police and the child. A key consideration will be ensuring the child is not held in custody for any longer than is necessary. The YJS should be advised if there is likely to be a denial of bail so they can assess the child’s circumstances to explore what other options are available. This is particularly important if a bail address is required because the child cannot return to their usual place of residence. Local policies and procedures should be followed in this respect.
The National Appropriate Adult Network (NAAN) provides standards and guidance for the delivery of appropriate adult provision. NAAN also provides:
- appropriate adult training and qualifications
- professional development and networking events
- online guidance for family members, practitioners, managers and commissioners
- advice and support for appropriate adult scheme leaders
The police have two options when investigating a case which is still ongoing, and they need more time to carry out further enquiries to determine the outcome to:
Section 50A of the Police and Criminal Evidence Act 1984 defines the conditions which must be met for police bail to be granted. The custody officer must be satisfied that releasing the child on bail is necessary and proportionate in the circumstances; and the bail must be authorised by an officer of inspector rank or above. Where police bail is granted, this will be for an initial period of 28 days to allow the police investigation time before taking a decision either to charge; or take no further action.
Under the Policing and Crime Act 2017 an extension can be agreed for up to three months if authorised by a senior officer; and for longer if approved by a magistrate’s court. Children are required to return to the police station at an appointed date and time (this is described as the ‘bailed to return’ date).
The Policing and Crime Act 2017 introduced a presumption of release without bail unless certain criteria are met (see part four Police Powers) with the option to release under investigation instead.
Failure to return to the police station at the appointed date is a criminal offence that makes the child liable to arrest under warrant (section 46A of the Police and Criminal Evidence Act 1984).
The Police, Crime, Sentencing and Courts Act 2022 further reforms pre-charge bail, including changes to the initial bail period and authorisation levels for the extension of bail periods. These are expected to come into force in October 2022.
Being released under investigation (RUI) is when a child is released from police custody without charge or obligation to return to the police station at any specific time. RUI is not bail, and bail conditions cannot be attached. However, the police may inform the child that inappropriate contact with anyone linked to the case, either directly or indirectly, through a third party or social media, may be separately investigated. Being RUI is very similar to being placed on unconditional police bail, but without the same obligation to return to the police station at a nominated date and time.
Children who are released under investigation should be advised by the police when the investigation has been completed; and of the outcome of the case e.g. that no further action will be taken; or they are being charged. There is no time limit within which the police must conclude their investigations in RUI cases.
In a situation where a child is already working with the youth justice service (YJS), the YJS police officer may obtain and pass on information about their bail/RUI status. You should continue to work with a child already on a diversionary programme or court order; but should not discuss any matters under investigation or any admissions.
The YJS may not know about children who have been released on pre-charge bail or under RUI unless they have acted as an appropriate adult. YJSs should consider developing a protocol with their police force to support the sharing of this information to ascertain how many children have this status in their locality because of the likely impact on future caseloads depending on the outcomes of these cases.
A voluntary police interview is an interview which usually takes place at a police station (although other locations can be used). It is a formal conversation with the police, but the child is not under arrest. It is voluntary in terms of attendance, which is advisable as refusal could lead to arrest or later count against the individual, but the child can leave at any point during the interview once it has started.
Children should be encouraged to exercise their right to legal advice and an appropriate adult before the voluntary interview commences.
For further information go to the Children’s Legal Centre website and guidance on your rights when attending a voluntary police interview.
When the police decide to charge a child with an offence, they will decide whether they should be bailed or if the criteria for refusing bail are met. Most children are likely to be released (with or without conditions) to attend court at an appointed date and time.
The grounds for detaining children are set out in the Bail Act 1976 and section 38 of PACE 1984. Children must be released on bail unless one or more of the following exceptions apply:
- their name and address cannot be ascertained
- there are reasonable grounds for believing they will fail to appear in court (because of previous occasions of not doing so)
- there are reasonable grounds for believing detention is necessary to prevent them committing further offences (this applies to imprisonable offences only)
- there are reasonable grounds for believing detention is necessary to prevent them causing physical injury to another person or causing loss or damage to property
- there are reasonable grounds for believing they may interfere with the course of justice or investigation of offences
- detention is in the child’s own interests
Conditions can be attached to police bail to prevent the child from:
- failing to surrender
- offending on bail
- interfering with prosecution witnesses or obstructing the course of justice
- or for the child’s own protection
If the police are considering refusing bail, the youth justice service should consider what measures can be put in place to enable the granting of bail e.g. by obtaining a suitable bail address and/or by offering a bail supervision and support package.
Children who are denied police bail should be transferred to local authority non-secure accommodation (unless specific criteria apply which indicates the transfer should be to local authority secure accommodation, see this guidance for more information). There is a duty on the police to request local authority accommodation and likewise a duty on the local authority to provide such accommodation. Lack of availability of accommodation is not an acceptable reason to fail to meet this duty. Children should be transferred to appropriate overnight accommodation and not held in police cells; except for those detained for breach of bail or under a warrant.
The custody officer should liaise with the local authority at the earliest possible stage to request accommodation and arrange the transfer. The local authority should identify a placement considering the child’s vulnerability and any risks to themselves or others. If a transfer is agreed, there should be a local agreement on how the child is transferred to the accommodation. This responsibility may fall to the police, youth justice service (YJS) or local authority, depending on local arrangements.
The Police and Criminal Evidence Act 1984 states that transfers to local authority accommodation must take place unless it is impracticable to do so. Being impracticable has a very narrow definition: extreme weather conditions or the impossibility, despite repeated efforts, of contacting the local authority. In these rare cases, a certificate must be produced for court explaining why the transfer was impracticable. Difficulties in finding a placement, or concerns about the child’s behaviour or the offence should not prevent the transfer request being made.
In most cases, the child can be accommodated in non-secure accommodation. The type provided is at the discretion of the local authority and may include a (remand) foster placement or children’s home or in the care of family or friends (where appropriate).
In very exceptional circumstances, where it is decided that non-secure local authority accommodation would be inadequate to protect the public from serious harm the police can request a transfer to secure accommodation. In these instances, the local authority must satisfy itself independently from the police as to the risk of harm, and that the statutory provisions which allow placement in secure accommodation are met. The child does not become looked after.
Local protocols should be developed between the police, local authority and YJS to facilitate the transfer to children from the police station into alternative accommodation.
The All Wales Guidance for the Appropriate Management and Transfer of Children and Young People by the Police and Local Authorities provides more information on the denial of police bail and transfer to local authority secure and non-secure accommodation, as does the Concordat on Children in Custody for England.
When a child appears in court, charged with an offence, magistrates can bail or remand them on any adjournment of the hearing and are required to do so when:
- starting to deal with the offence, or at any time during the process of dealing with the offence to enable a medical examination and report to be produced
- the court commits the child for trial on indictment or to the Crown Court for sentence
The options the court will consider at each hearing are whether the child should:
- be placed on unconditional bail
- receive bail with conditions
- be remanded to local authority accommodation
- be remanded in custody
The Bail Act 1976 sets out the general right to bail. Bail enables the child to be released from court on the condition that they will return to the court at a specific future date and time. The Bail Act applies to children and adults alike. The presumption is in favour of bail unless there are certain exceptions, and the child has:
- previously not attended court for a bail hearing
- previously committed an offence on bail
- interfered with witnesses
- committed the offence(s) whilst on bail
When a court is considering bail, it needs to determine whether it is unconditional or granted with conditions attached. Unconditional bail means being released from the court without any requirement other than to return to the court at an appointed date and time. Conditional bail means that requirements are attached which the child must adhere to during the bail period. These can include:
- reporting to a police station
- attending the youth justice service as part of bail supervision and support package
- a curfew (with or without electronic monitoring)
- not going to a certain place or area (a map or should be provided to the child)
- not contacting victims or witnesses (or other identified individuals)
- attending an appointment with a lawyer or representative
- attending an appointment for a pre-sentence report to be produced
- providing a surety (a specified sum of money) as a guarantee of attending court
Courts will start from the position of whether unconditional bail can be given; and will only attach conditions if there is evidence to suggest they are needed to manage any risks associated with the exceptions to bail. Conditions can be attached, varied or removed at any time during proceedings.
The child’s lawyer (defence solicitor) will make a bail application to the court; however, it is important that the youth justice service (YJS) provides as much information as they can about the child’s background, circumstances and well-being to enable the granting of bail. YJSs have a duty under the Crime and Disorder Act 1998 to provide bail supervision and support and should identify how the child can be managed in the community as an alternative to a custodial remand.
Managing and minimising the use of remands is an important function for YJSs. The harmful effects of custody are well documented; the use of custody should be limited to where it is considered the only appropriate option. The default position is that every effort should be made to try to maintain children in the community. One of the considerations that courts have to make when considering bail is whether it is very likely that the child will be receive a custodial sentence for the offence in question. They also have a statutory duty to consider the child’s welfare needs and best interests when taking the decision.
For further information see section 98 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. YJSs should ensure they:
- identify and assess children who are likely to be denied bail
- consult with relevant partner agencies including the Crown Prosecution Service, police and children’s services to understand any potential opposition to bail, and to broker suggestions to mitigate these concerns and propose a community alternative to custody which has the confidence of the court
- liaise with defence solicitors regarding initial and subsequent bail applications
- discuss the options with children and their families
- present local community-based alternatives including credible bail supervision and support packages
- provide community resources which can support alternatives to remand
- proactively seek to reduce remand periods by keeping cases under review; liaising with defence solicitors, children and their families if new information comes to light or there is a change in circumstances which could enable a bail application to be made
- ensure there is no discrimination in presenting bail packages, to prevent unnecessarily negative outcomes for children with protected characteristics and children of Black and of Mixed heritage
The starting point is to identify which children appearing in court are likely to be denied bail and undertake an assessment of their situation and circumstances. You should identify what the objections to bail are likely to be and consider how they can be addressed and managed in a bail supervision and support package which would enable bail to be granted and prevent a remand into youth detention accommodation. This will involve liaison with the police, defence solicitor and Crown Prosecution Service to understand the concerns and how they can be addressed.
The aim of information gathering, and assessment is to be able to provide the court with sufficient information on which it can make a decision. You should explore the options with the defence lawyer, child and their family to agree what will be put forward to the court to ensure they understand the importance of engaging with the youth justice service (YJS) and the bail conditions which may be imposed.
The Bail and Remand section of AssetPlus helps you make an assessment to respond to objections to bail and to recommend the most suitable bail supervision and support package. Due to time constraints at court, the assessment for bail needs to focus on key areas which can inform the bail decision. You should check whether the child is known to the YJS and what information case records hold about them. This might include previous responses to bail and engagement with the YJS. For example:
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If the child is previously known, you should use information from past assessments, provided they are relatively current. You should be aware of any significant changes in circumstances which might be relevant.
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If the child is from another area, you should make every effort to liaise with that area and ensure relevant information is provided to the court. See the section on case responsibility for more details.
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You should be aware of any previous responses to bail as they may be an indicator of engagement with bail conditions. Any previous lack of engagement should be placed in context, as past problems are not necessarily an indicator of the child’s current attitude or future behaviour.
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You should investigate the child’s living arrangements and whether a bail address may be required. The child’s situation may change because of the location in which the offence was committed. For example, if it took place in a residential placement or in the family home, the child may need to be found an alternative address away from the victim. If an address is required, you should work with the child’s family and local authority to provide an appropriate bail address to the court. You may be asked to assess whether an electronically monitored tag could be used as part of the bail package. Where the child is not previously or recently known to your service, it may be challenging to assess the suitability and risks in the home environment. If the timescales for presenting a package to the courts don’t allow for a home visit, a tag may have to be recommended on the basis of limited information. A home visit should then be a priority for bail supervision, and a recommendation made to vary the package if necessary.
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You should take into account any activity the child is currently engaged in e,g. education, training and employment, leisure activities, their support network and any other factors which could enhance the bail application and the bail supervision and support package.
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You should embed diversity and cultural considerations in every decision, and ensure that bias, negative labelling, language and cultural bias are considered and removed from reports and information presented. For example, research has shown that there can be an increased perception of risk with Black children; or an inaccurate perception that children from Gypsy, Roma and Traveller communities are likely to be in transient accommodation and may not therefore comply with bail conditions.
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You should assess potential risks to the child and others to weigh up safety and well-being concerns with protection of the public. The Community Package Bail Proposal section of AssetPlus will then form the basis of your proposal to the court.
At the end of the assessment process, you should decide whether to propose a bail supervision and support package, with or without intensive supervision and surveillance. You should consider carefully the proposals made for over-represented groups, particularly children who are Black, of Mixed heritage and looked after, to ensure that what is being proposed is fair and proportionate.
In instances where the assessed risks are too high for the safe management of the child in the community, you may choose to not propose a bail supervision and support package to the court. In these instances, you should:
- explain to the child and their parents/carers why this is the case
- stress they will have the continuing support of the YJS
- explain that the decision may not prevent a future application being made, as the service will keep their situation under review and maintain contact with them whilst in custody
You should always work within the agreed guidelines of your service and ensure that decisions are defensible as well as being in the best interests of the child.
Reports which support a bail application will be prepared using the ‘Community Package Bail Proposal’ section of AssetPlus, containing the following at a minimum:
- suitability for conditional bail supervision and support with reasons given
- ideally, the child’s informed agreement to engage and participate with the proposed package
- details of the bail address, checked by youth justice service (YJS) police officer for suitability
- the content of the bail supervision and support package provided and the level of contact with the child during the bail period
- any other conditions assessed as necessary to protect the public and ensure a return to court
- details of what will happen if the child does not engage with bail supervision and support package
The report should contain the proposal that the court impose the condition “to comply with the requirements of the bail supervision and support package”. This will give you the scope to amend the content (without returning to court) as the needs and risks presented by the child may alter. You should liaise with the police, CPS and defence in advance to ascertain if there are any objections to bail and address them ahead of the bail hearing.
The method of presentation to the court is likely to be dependent on the time available. There are advantages in presenting the report in writing is it ensures that all parties are clear about the content; and wherever possible this would be preferred. Any written documents should be made available to the court and the report (whether verbal or written) should be presented to it alongside the bail application by the defence solicitor. The child and their parent/carer should be fully aware of (and agree to) the contents prior to the report being presented to the court.
If the child is the responsibility of a different local authority and the host YJS is presenting the bail package to court, the proposal should be agreed with the home authority prior to submission to court and the home authority provided with a copy of the report or if it was presented verbally the details it contained. See the section on case responsibility for more details.
Bail supervision and support is the provision of services (intervention and support) designed to support children who are awaiting trial or sentence. It assists them to successfully complete bail in the community, by addressing their circumstances and objections to bail through the provision of relevant support. Section 38(4)(c) of the Crime and Disorder Act 1998 imposes a statutory duty on local authorities and their partners to provide “support for children and young persons remanded or committed on bail while awaiting trial or sentence”.
Bail Intensive Supervision and Support (ISS) also falls under this duty and while is not explicitly listed, is a more intensive form of bail supervision and support usually used as a direct alternative to a remand to youth detention accommodation. ISS is accompanied by an electronically monitored curfew or location monitoring by GPS tag, which is the element described as surveillance.
Youth justice services (YJSs) should have arrangements in place to ensure that they can offer bail ISS if it’s required to prevent a custodial remand. Local authorities are liable for the costs of a secure remand, which will far exceed those of a very intensive community package. YJSs should also ensure that this option is always considered for children with Black and Mixed ethnicities, who are disproportionately represented in the secure remand population.
Bail Intensive Supervision and Support (ISS) is intended to be an intensive package of support, with a high level of contact and structured activity for the child, designed as a direct alternative to custody. It can be used in a dynamic and flexible way to respond to the risks and needs of the child. It does this by being intensive at the start of the bail period and tapering as the child’s position stabilises and some of the risk associated with bail decrease.
Contact can also be increased if the child’s situation changes to justify it. The frequency of contact at the start, and any subsequent adjustments should be decided by the court, informed by the youth justice service (YJS) professional assessment and relate to the circumstances of each individual child. Contact can be up to 25 hours a week. Bail ISS always includes electronic monitoring, which may be by radio frequency or GPS tag. Read the YRO Electronic Monitoring Requirement and how to manage the YRO Electronic Monitoring Requirement for information on the considerations around the use of electronic monitoring and the use of GPS location monitoring.
The court can only impose electronic monitoring if the current arrangements in the local area allow for it.
The key element at the outset will be development of a positive working relationship with the child so that they successfully engage. When designing the content of the support, the practitioner should consider whether the bail ISS package:
- is likely to be effective in managing the courts concerns as an alternative to custody
- prioritises the best interests of the child
- recognises their individual needs, capabilities and rights
- protects the public
- is sufficiently child focused and developmentally informed
Bail ISS should provide regular statutory supervision sessions which manage any risks posed to the child, victims or the wider public. Children subject to bail ISS should, where possible, be engaged in education, employment or training, with the number of hours being determined by the YJS to suit the child’s circumstances and needs. Existing engagement with education, training or employment or involvement in vocationally focused activity may be part of this.
If the child is currently on a statutory community order the appointments associated with this can act as contacts for bail supervision and support and bail ISS.
YJSs may also offer other forms of support such as with education, training and employment, health issues, substance misuse, use of leisure time and family support. These should not be mandatory, and whilst they can form part of the intensive package, they should not be enforceable, but focused on assisting the child with harm reduction and leading a healthy and safe lifestyle.
As there has been no finding of guilt at this stage it is not appropriate to undertake offending focused interventions or restorative justice.
The most successful bail ISS packages are those where the YJS takes a holistic approach and is creative about meeting the needs of each child, rather than offering a standard package of support. It is also essential that any objections to bail are addressed in the package.
There should be a regular review of the child’s engagement and progress with the bail ISS package. This should include a review as to whether the ISS element of the support remains necessary considering engagement and any change in the factors which led to its imposition. Application may be made to the court to vary the condition where relevant. For example, to reduce the intensity of the package or consider the use of other bail conditions.
If the court imposes a bail supervision and support package, the youth justice service (YJS) is responsible for the case management. The child should be allocated to a worker within 24 hours. If the parent or carer was not present in court, they should be contacted within 24 hours of allocation to engage them in supporting the child to work with the YJS. This may include a home visit.
The case manager should ensure that the child and their parents and carers understand the requirements of the bail supervision and support package. The requirements should be agreed and signed by the child (and their parents/carers), and a copy provided to them.
The child should know who they will be working with and have an identified case manager. The case manager should support them to:
- determine who else they need to be in contact with as part of their bail supervision and support package where they need to report to (or how they will be contacted)
- understand that if they do not engage with the YJS they could be returned to court and be remanded in custody
If a child is fitted with an electronic tag, the case manager responsible for the child must contact the provider and provide their contact details so that in the event of a breach the YJS can be notified (see also what to do when a child breaches electronic monitoring.
In many cases, youth justice services will choose to continue to manage children who turn 18 while on bail given that the offence for which they were bailed took place when they were under 18 years of age. This will help to ensure the continuity of support and supervision and the management of vulnerability and harm to others. Once the child has been sentenced, transition processes to the probation service should take place. For more detail, please refer to the how to manage transitions section.
If a child does not engage with any bail supervision and support condition, this should be followed up by a phone call or home visit within 24 hours, to determine whether there is a valid reason for this. You should record the reasons and circumstances on the child’s case record to inform any later decision making. As the professional it is your responsibility to find ways to engage children. You should be flexible, creative and responsive to their needs whilst also mindful of the obligation to the court. You should engage parents/carers and establish if and how they are able to assist the child to work with the youth justice service (YJS). For more detail, please refer to how to encourage engagement (compliance).
Any breach of bail may lead to a decision to remand the child. You should make every effort to engage the child, and only use breach as a last resort; for example, when the safety of the public or any individual is at risk. You should talk with the child to establish:
- whether they are having any difficulty in engaging with the YJS and the conditions of bail
- what has been successful and how this can be built upon
- whether they need any additional support
- whether there is a public protection risk and how that should be addressed
You have the option of considering whether you should vary any of the requirements of the bail supervision and support package and/or formally or informally warn the child that they must comply with the bail condition. A failure to do so will mean them being returned to court and potentially facing more serious consequences. Please refer to how to respond to non-engagement (breach) for more detail.
Breach proceedings are instigated by making a witness statement to the police. The child should be advised that breach has been instigated and they should attend court as required. You will then prepare a breach report giving full details including the:
- reasons given by the child for not adhering to their bail conditions
- progress made and engagement to date
- context in which the breach occurred
- actions which could be taken to support engagement with the YJS
You should always consider that an ultimate outcome of taking the child back to court could be a custodial remand. Breach reports should always give an account of any positive engagement, progress against goals and factors which could support further engagement. The report should indicate that you are prepared to continue working with the child and to support them; and suggest any alterations to be made which would promote engagement.
The YJSs levels of breach action should be monitored and reported to the YJS management board as part of regular performance management data. The board should have oversight of actions to avoid high levels of breach; and of monitoring breach action to ensure it is not disproportionately taken against children from ethnic minorities or against vulnerable and children and those who are looked after. Any decision to take breach action should be accompanied by a review led by an independent manager. This should consider:
- what has led to a failure to engage this child?
- learning can be taken for the development of individual staff or the service
- alterations which can be made to help the child to engage in the future
If a child is refused bail, they should be remanded to local authority accommodation. The provisions for this are contained in chapter three of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. See also remand to local authority accommodation in this circular.
A remand to local authority accommodation is available for all children under 18 years of age. Local authorities have a legal duty under Section 21 of the Children Act 1989 and in Wales, part six of the Social Services and Wellbeing (Wales) Act 2014 to provide accommodation for all children remanded to local authority non-secure accommodation. This may be an option if the court is not satisfied that a bail supervision and support package would be enough to address the objections to bail.
Children’s services will decide what the most appropriate placement will be which can include in a (remand) foster placement or a children’s home or to family or friends (if appropriate). Conditions may be attached to the remand to local authority accommodation in the same way as for conditional bail, such as a curfew.
If the court is considering a remand to local authority non-secure accommodation, it is required to consult with the local authority about availability and suitability. The youth justice service (YJS) court duty officer may in the first instance liaise with children’s services to alert them to this possibility and request that they find a placement. The court must specify the local authority to which the child is remanded. Every child remanded to local authority accommodation becomes ‘looked after’ by the local authority. Where there are conditions imposed, the court has a duty to explain these to the child in plain language and check understanding.
If a child appears in a court out of their ‘home’ area, the YJS court officer will need to liaise with the home authority when making any decisions related to this type of remand. Please see the case responsibility section for more information about managing children from another area.
If placed in local authority non-secure accommodation, the YJS should continue to work with the child and support them through the remand period and should also work with children’s services and the residential provision to assess and address the child’s needs.
If a child has their 18th birthday whilst on remand to local authority accommodation, the court has the option to bail, or to remand them into custody. You should provide the court with a bail package with conditions as similar as possible to those of the remand to local authority accommodation. You should remind the court that bailing would be consistent with the impetus to keep a child who turns 18 in the under 18 custodial estate until the case is concluded.
If a child is refused bail, they can be remanded in youth detention accommodation (custody) only if the case meets the legal tests. The courts must record their reasons for imposing custodial remand, showing that they have considered the welfare of the child in their decision and have considered remand to local authority accommodation. The chair of magistrates or judge must explain to the child the reasons for the remand; and HM Courts and Tribunals Service must provide these reasons in writing to the child. Sections 98 to 102 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 sets out these conditions and the framework for this type of remand. See also this circular.
Even if these conditions are met, a custodial remand should only be used where it is absolutely necessary. Youth justice services (YJSs) should be proactive in managing cases appearing in court and anticipating where a child may be at risk of being remanded in custody. This is because all other options are unlikely to meet the objections to bail and unless there are exceptional circumstances, you should always prepare and propose a community alternative for the court to consider.
The option of a remand into youth detention accommodation is available for children who meet the criteria aged 12 to 17 years of age. The type of accommodation they are placed in (a young offender institution, secure training centre or secure children’s home) will depend on a range of factors, including the child’s:
- age
- sex
- vulnerability
- previous experiences of custody
- and the availability of placements
Every child remanded to youth detention accommodation becomes ‘looked after’ by the local authority. Children of 10 and 11 years must be remanded to local authority accommodation.
The placement decision is made by the Youth Custody Service with recommendations from the YJS assessment of the child.
The Youth Custody Service is responsible for placing children in all forms of youth detention accommodation. However, the youth justice service (YJS) will make recommendations on the most appropriate placement type for the child’s needs. Factors which influence the placement decision include:
- the child’s safety and wellbeing and any additional safeguarding needs the YJS has highlighted
- the level and nature of risk the child is assessed to pose to others and which individuals and/or groups are at risk
- the child’s previous history within the secure estate, including any previous experiences in specific placements
- any specific needs, for example the requirement for a particular programme of support; health, education or welfare needs which can best be met at a specific establishment
- the availability of places across the secure estate
- any co-defendants, gang or territory affiliations which may cause tensions with other children in custody, and make particular placements unsuitable for that individual
If a child is likely to be remanded into youth detention accommodation, the youth justice service (YJS) officer in court should contact the Youth Custody Service (YCS) Placement Team as soon as possible with the relevant information and be familiar with the arrangements for making a placement decisions and what information will be needed.
Once it is established that a remand into youth detention accommodation is likely, the YCS Placement team should be contacted by telephone on 0345 36 36 36 3. Further information about the placement process is available in the YCS’s Placing young people in custody guidance.
The Bail and Remand module of the AssetPlus assessment must be completed and sent to the YCS Placement Team to inform decision making and highlight any safeguarding concerns about the child. If the child has been securely remanded, an AssetPlus Post-Court Report stage including an updated custody module must be completed and sent via Connectivity, the online system for sending this information, that working day.
It is important that your assessment considers the child’s individual needs from a diversity perspective and reflects any specific needs arising from cultural difference. You should be aware that there are often stereotypes and assumptions made about children from specific backgrounds because of their race, religion or looked after status and should ensure that the child is presented in a positive way which does not contribute to this.
The YJS should give the YCS a recommendation as to what type of placement would be suitable based on their assessment of the child and their needs. The ultimate decision of where to place the child is taken by the YCS. If there is disagreement on the placement decision, this should be escalated to managers in the YCS’s Placement Team, YJS and local authority.
The Placement Team will review the child’s documents and make a placement decision and referral to the identified accommodation provider. Once the placement has been confirmed, the Placement Team will issue a placement confirmation form to the YJS, the escort contractor and the accommodation provider.
The cost of remand accommodation is charged to the local authority. The cost of the different types of youth detention accommodation varies significantly but should never influence the choice of placement. When the YJS is considering what type of accommodation would be most suitable for a child facing a custodial remand, the decision should be informed by the child’s needs (particularly their vulnerability and any safeguarding concerns), and not the cost of the accommodation.
Whilst it is important that all the correct notifications and paperwork is completed to manage the remand, it is important not to lose sight of the fact that a child has lost their liberty. You should spend time with them to check on their well-being, to explain what will happen next, discuss any anxieties and find out if there is anything practical which immediately needs to be done to assist them.
Once the child has been remanded into custody, you should:
- ensure that they are allocated to a suitable worker within the team; ideally one with prior knowledge of the child
- inform parents, carers, education establishments, accommodation providers and any other relevant organisations or individuals
- liaise with children’s services to ensure that looked after assessments and duties are initiated promptly (see below)
- work with the secure establishment to put remand plans in place which meet the child’s needs
- review the remand to consider whether an application should be made for bail at the next court appearance; liaise with the child’s solicitor and if so, list this as soon as possible
- begin to plan for the child’s resettlement, bearing in mind that this could happen very quickly as a result of a bail application, charges being dropped or finding of not guilty
It is good practice to hold an in person initial planning meeting no more than five working days from the date of the remand and agree what the child will undertake during their time in youth detention accommodation.
Because all children remanded to youth detention accommodation automatically achieve looked-after status (see also what looked-after status means for children remanded to youth detention accommodation, it is recommended that you use a single detention and placement plan for the child whilst they are on remand. The following template is an example of a remand detention placement plan.
The plan should be based on the needs set out in the AssetPlus assessment and should address how continuity of education and vocational advice and experience will be maintained whilst in custody. To ensure the secure establishment has the most up to date information about the child’s education status, progress and any learning difficulties and disabilities, you should liaise with:
- the home education authority where the child is of school age, to ensure that their statutory duties continue to be met
- the relevant education or training provider, employer or careers advice agency if they are above school age
The initial planning meeting should include the:
- child
- case manager from the home YJS
- child’s parents or carers
- allocated social worker
- any other individuals who have been engaged with the child
At the initial planning meeting if the child is approaching 18 years of age (generally within six months of that date), you should begin planning for their possible transition to the adult prison estate or the probation service, being mindful of when they are likely to be sentenced. For further information see the national protocol for transitions in England and the youth to adult transitions guidance for Wales.
Every planning meeting should consider a remand review and whether a bail application should be made to ensure that children are not remanded in custody for any longer than is necessary. Two bail applications can be made which the court is bound to consider. After these have been made, the court is not obliged to hear any arguments they have heard previously.
Subsequent bail applications can only be made if the circumstances of the child or the case have changed, or when new information can be put before the court. In these instances, the youth justice service (YJS) should re-examine what would be appropriate in terms of a bail package with or without intensive supervision and surveillance. The YJS should also liaise with the child’s solicitor to agree what is appropriate at any stage.
The first court appearance counts as the first bail application whether it’s used or not and further applications are normally made at the next appearance. However, applications can be made to the Crown Court provided the magistrates court has issued a certificate of full argument or to a judge in chambers in the High Court.
Where possible, children who turn 18 while on remand should remain in the under-18 estate until their court case has concluded and they are sentenced. Consideration should be given to the length of time the child is likely to remain on remand and, if convicted, the type of custodial sentence they would receive. At no time should children move to the adult estate straight from a court hearing. If the child receives a custodial sentence, they should return to youth detention accommodation. This should then be followed with a planned move as part of their transition plan. More information is within this guidance from HM Prison and Probation Service.
All children remanded to youth detention accommodation automatically become looked-after by their home local authority, including children who were previously not looked-after. If they were looked-after prior to the remand they will continue to receive services under the Children Act 1989 (England) and the Social Services Well-being (Wales) Act 2014. This includes where a child is serving a custodial sentence, during which they are charged and remanded for other offences – known as a ‘technical’ remand, although in this instance the local authority will not be charged for the cost of the remand accommodation.
Children’s services continue to have a duty to carry out reviews for a child who is looked after to assess their welfare needs, ensure they are met and see whether the child has any other support (including financial) needs the local authority should meet. The child should continue to have an allocated social worker while they are in custody who maintains contact with them.
A plan should be agreed and put in place, based on the local authority’s assessment of the child’s needs, no more than 10 working days after the remand starts. The youth justice service (YJS) should be aware of the plan and as far as possible looked-after reviews and remand reviews should be combined. This is so that the relevant professionals can be present and take a holistic view of the child’s needs. However, it is also important that each agency retains their distinct roles and responsibilities and supports the child in line with their statutory duties.
The Visits to Children in Detention (Wales) Regulations 2015 specify the children (other than those currently looked after) that the local authority has a duty to visit. This is to ensure that all children in custody have local authority support should they need it. This includes children who are convicted of an offence by a court and who are sentenced to custody, but lose their looked after status because:
- immediately before being convicted and detained, they were a looked after child by virtue of a local authority in Wales providing them with accommodation under section 76 of the Act, or
- they were ordinarily resident in Wales and were treated as a looked after child in accordance with section 104 of the Legal Aid Sentencing and Punishment of Offenders Act 2014, by virtue of being remanded
This guidance sets out the responsibilities of children’s services and YJSs in Wales for children in custody including those on remand.
If the remand lasts for 13 weeks or longer (on single or cumulative occasions), the child becomes eligible for leaving care services. This means they will receive advice and additional support beyond their 18th birthday, up to the age of 21 or 25 depending on their circumstances. This can be in relation to accommodation, education and health as well as financial assistance (including for higher education) by the responsible local authority. Every child eligible for leaving care services should have a pathway plan which is compiled with them by their social worker which sets this out.
It is important for each youth justice service to have a documented strategy for managing and minimising the use of custodial remand for children. All staff should be familiar with the strategy and be able to implement it effectively. The strategy should include:
- offering services proactively to children from arrest through to sentence
- responding systematically to children at each stage to reduce use of remand
- identifying children at risk of remand, with assessment and review throughout
- having mechanisms in place to select the best and most appropriate resources to support each child according to their needs, including the provision of bail intensive supervision and surveillance and how it will be delivered
- effective liaison with the police and courts
- processes for regularly reviewing remand decisions
- monitoring and evaluation of outcomes, particularly for over-represented groups and where disproportionality may be evident