James was 12 years old when his mother was informed he was wanted by the police for a suspected burglary.

This is the ‘crime’ the police were investigating: James had wanted to show his friend his old primary school which was open at the weekend for external clubs. Once inside the school they found a cleaner’s pass and used it to explore staff-only areas, such as the kitchen, something many curious children might do. Nothing was stolen or damaged.

After the weekend the school watched the CCTV. Recognising James as a former pupil, but not his friend, the school called the police, and so the wheels of the criminal justice system were set in motion.

When James discovered the police wanted to question him he became so anxious he was unable to sleep, his mother had to take him into her bed.

He was taken to the police station and interviewed on suspicion of burglary under caution. His mum says that he did not understand one word of the police caution, they “may as well have been speaking Latin”. After the formal interview at the police station the police decided not to proceed with criminalising James further, the process was over but the impact of the process will not go away so quickly.

Lately Her Majesty’s Inspectorate of Constabulary (HMIC) published a report which concluded that vulnerable children in contact with the police need care not custody.

This is no surprise to those of us who work with children caught up in the criminal justice system, but has often been a point of contention between organisations like mine, Just for Kids Law, and government agencies.

The report found that in encounters between children and the police, “Some police officers did not regard all children as vulnerable. They saw the offence first and the fact that a child was involved as secondary.” This is often entrenched position, as exemplified by what happened with James and one that we believe needs to be reversed.

The HMIC report highlighted various areas of serious concern in relation to how children are treated in police custody, for example shockingly, the HMIC reported that according to data in the areas that they were inspecting, not a single child was transferred from the police station to a local authority bed in the 12 months prior to the 2014 inspection, despite requests being made by the police.

This means that in every case where data was collected a child was kept overnight at the police station, in a police cell, in breach of the law which says that children who are not granted bail must be transferred to child safe accommodation.

One child told the inspectors:

“When you’re sitting in that [...] freezing cold cell for, well like just short of 23 hours, you know what I mean? It’s a long time to sit in that cell, in them four walls….I just start going crazy ‘cause I think about me mum and that all the time and it just makes me go really mad. I just end up punching all the cell wall and that and breaking all me hands and [stuff] like that.”

One of the young people we work with said of the cells:

“When I was taken into the cell – I felt like I was alone, a little boy left alone in grown up world. I was being left in a place where they hold people who kill people. I felt as if I had been thrown in there and left to die. I had no idea how long I would be in there. No one brought me any food or water I was completely left in there being treated like I had killed someone.”

Children tell us that they are given nothing at all to do in the hours that they are kept in the cells. One boy said he was

“staring at the walls, it was completely blank cell it is like the most boring thing in the world multiplied by 100 there were no colours, nothing to look at.”

Another shocking finding of the HMIC report is the levels of strip search being used on children, and especially on children who are from black and ethnic minorities. Research by Children’s Rights Alliance England shows that numbers of strip search has doubled in the years between 2008 – 2013; alarmingly 45 per cent of the children stripped by the police have their clothes removed without their appropriate adult present or even being made aware.

The fact that strip searches are being used disproportionately against black and ethnic minority children makes it even more galling. A graph from the HMIC report emphasises the point — not only are African-Caribbean people more likely to end up in custody, but also: “BAME groups were significantly more likely than their white counterparts to die following the use of restraint.”

As those who had been detained pointed out to the HMIC Inspectors, strip searches are, by their very nature, “undignified and degrading”.

The UNCRC requires that children in trouble with the law are “treated in a manner consistent with the promotion of the child’s sense of dignity and worth.”  The HMIC report found: “In light of the research information available to us coupled with the lack of authoritative police data, we consider that police forces are at considerable risk of discriminatory strip-searching practices.”

The 1999 Macpherson report, following the death of Stephen Lawrence, suggested measures to tackle institutional police racism. It is disheartening that still, 16 years later, there is persistent evidence that BAME people in contact with the police are at risk of discriminatory treatment.

In the last year the Home Secretary has ackowledged the discriminatory and ineffective use of stop and search. The same must now  be recognised about strip-searches.  We believe  they must be used only as a last resort and regulatory practices and data collection must ensure that even then they are used  in an even-handed way.

In a further depressing finding the HMIC report found that examples of good practices of treatment of young and vulnerable people by the police seemed to depend only on individual officers’ own experiences, “rather than being able to refer to official training or guidance”.

The report stated:

“A significant finding from this inspection is that police officers are trying to respond to children and those suffering from mental health crises in an environment and with policing tools, skills and knowledge that are wholly unsuited to the task.”

In light of investigations such as the one in Rotherham, it is frightening to think that, despite all child protection rules, despite local safeguarding boards and all other protection that are in place to ensure children’s welfare is at the forefront of any interaction with a child, some police officers are still treating children as if they were adult criminals.

The HMIC report stresses that “children who were charged with a crime did not always fully understand the nature of the alleged offence due to the technical language used by officers”. This chimes with our experience of children in the criminal justice system.

HMIC found that many of those detained were uncertain of their rights and entitlements and this caused “anxiety and stress for participants who were entering custody for the first time. It also inhibited some children from asking for entitlements, such as a blanket, while detained.”

One of my greatest concerns as a lawyer for children is seeing the number of children who don’t exercise their right to legal advice at the police station: the young people we work with say that often the police actively discourage them from having a solicitor, telling them it will only delay their getting out of the police station.

At Just for Kids Law, we provide not only legal representation but we try to look at the whole person and providing support, advice and representation to children in every area of their life that may be difficult. When we see systemic failures in the system we lobby and fight for changes in the law.

The mainstream media portrays children in trouble with law as threat, menace, and evil. What we mostly see is a vulnerable child trying to navigate their way through an often unjust and baffling adult world.

As responsible adults, we must remember and accept that we all embarked on a journey to become responsible, considered human beings, we weren’t born considered or mature. We are constraining the development of those who are trying to become adult human beings if we do not recognize that they too are on that journey. We cannot expect children and young people to be mature until they grow into it – just as most of us believe in evolution not creationism.

I find it frightening that children are not allowed to be children and are expected to comply with the rules of adult society despite not having the biological, emotional or neurological development to make the responsible, mature, considered choices.

I remember a discussion with a right wing think tank who wanted the UK to lower the age of criminal responsibility. At that time my son aged 3 was going through a “biting phase”. My son definitely knew what it was wrong to bite – the standard that some argue for setting  criminal responsibility-  but if we were to hold a 3 year old to the same account that we would hold an adult who bit strangers accountable for his actions, he would have been not only criminalised but perhaps even incarcerated for his ‘assault’ of another person.

We believe that bad behaviour by children, while not being condoned, should belong in a special category – different from the system that is used to criminalise mature adults. It has always made economic sense to respond to the welfare and needs of children rather than to pursue criminal retribution, but the economic argument has never held much import.

The same week that HMIC published its depressing report Her Majesty’s Inspectorate of Probation reported that at  the other end of the criminal justice system, release from custody that the “re-offending outcomes” for many children  were ‘poor’.

The inspectors wrote: “very often the support to help these children to successfully stop offending and start new law abiding lives had not been good enough.”

Reoffending rates for children who have been in custody remain stubbornly close to 70 per cent while the cost of detaining these children is at least double the cost of the UK’s most exclusive  private boarding schools.

If the system is failing children in trouble at every point, perhaps it is time for a new system. We need to find an approach which can see them as children first and show them the compassion that they deserve and that any of us would want for our own children.

Two reports

The welfare of vulnerable people in police custody, Her Majesty’s Inspectorate of Constabulary, March 2015, is here.  

Joint thematic inspection of resettlement services to children by Youth Offending Teams and partner agencies reflects the findings of HM Inspectorate of Probation, the Care Quality Commission and Ofsted, 12 March 2015, can be accessed here.

The cartoon is from the Just for Kids Law stop & search video.