The Queen on the Application of HC (a child, by his litigation friend CC) v. The Secretary of State for the Home Department and Another
High Court of Justice, Queen’s Bench Division
25 April 2013
Article 1: Definition of a child
Article 3(1): Best interests of the child
Article 5: Parental guidance and the child’s evolving capacities
Article 9: Separation from parents
Article 12: The child’s opinion
Article 37(c): Torture and deprivation of liberty
Article 40: Administration of juvenile justice
Other International Provisions:
European Convention on Human Rights
UN Declaration of the Rights of the Child
Police and Criminal Evidence Act 1984 and its Codes of Practice
Human Rights Act 1998
Civil Procedure Rules
Children and Young Persons Act 1933
Children and Young Persons Act 1963
Children and Young Persons Act 1969
Magistrates Court Act 1980
Rehabilitation of Offenders Act 1974
Prison Act 1952
Criminal Justice Act 1991
Criminal Justice Act 2003
Criminal Justice and Court Services Act 2000
Crime and Disorder Act 1998
Legal Aid, Sentencing and Punishment of Offenders Act 2012
Bail Act 1976
Powers of Criminal Courts (Sentencing) Act 2000
Family Law Reform Act 1969
Children Act 2004
Children Act 1989
A 17-year-old boy was held in a London police station for 11 and half hours overnight on suspicion of robbery; he was denied the right to contact his mother when arrested, his mother did not have a right to speak to him, and he did not have an appropriate adult present when questioned by the police. The Police and Criminal Evidence Act and Code of Practice permitted the police to treat a 17-year-old in police custody as an adult; unlike a child under 17, a 17-year-old was not entitled to the support of an adult to help engage with the criminal justice system. This application challenged the position of treating 17-year-olds in police custody as adults rather than children, raising the question whether it was lawful for the Secretary of State for the Home Department to refuse to revise the Code of Practice.
Issue and resolution:
Juvenile justice; treatment of 17-year-olds in police custody as adults. The Court found that the Code of Practice was unlawful and the Secretary of State violated Article 8 of the European Convention on Human Rights (“European Convention”) by failing to revise the Code so as to distinguish between the treatment of an adult detainee and a detainee under 18. Article 8, read with the CRC, requires a 17-year-old in detention to be treated in conformity with the principle that his best interests were a primary consideration.
The Court observed that the treatment of persons under 18 as adults while in police custody is an anomaly in UK law, which generally defines a child as any person under the age of 18. Relevant international conventions, including the CRC, reveal a broad consensus that those aged 17 should be regarded as children, who must be treated differently to adults and sheltered by special protection designed to meet their best interests. Furthermore, the UN Committee on the Rights of the Child has recommended that States which limit the applicability of their juvenile justice rules to children under 16 or lower, or which allow 16 or 17-year-old children to be treated as adults, change their laws with a view to achieving a non-discriminatory full application of their juvenile justice rules to all persons under 18. Therefore, the treatment of 17-year-olds as adults when arrested and detained under the Code of Practice is inconsistent with the CRC and the views of the Committee on the Rights of the Child.
Although the CRC has not been incorporated into UK law, the Court held that the European Convention, which has been incorporated, must be interpreted in light of the CRC. In particular, the Court found that if Article 8 of the European Convention (right to respect for privacy and family life) is engaged, then it must be interpreted in harmony with Article 3(1) of the CRC (best interests of the child). Article 8, read with the CRC, requires a 17-year-old in detention to be treated in conformity with the principle that his best interests were a primary consideration; the treatment of a 17-year-old as an adult when in detention is inconsistent with this principle.
Excerpts citing CRC and other relevant human rights instruments:
38. The impetus driving the United Kingdom to afford special statutory protection to those under 18 is the United Nations Declaration on the Rights of the Child 1959 and the Convention on the Rights of the Child 1989 (“UNCRC”). One of the key principles of the United Nations Declaration is that a child is to enjoy special protection. The preamble to the UNCRC speaks of entitlement to special care and assistance for a child. The UNCRC is the most widely ratified human rights treaty in the world. All save two states have ratified it. The United Kingdom signed on 19 April 1990 and ratified it on 1 6 December 1991. For the purposes of the instant application, what is of most significance is not so much what it provides but whom it protects. Article 1 of the UNCRC defines a child as a person aged under 18 unless, under the law applicable to the child, majority is attained earlier. The age of majority in the United Kingdom is 18. It was reduced to 18 from 21 on 1 January 1970, pursuant to s.1 of the Family Law Reform Act 1969. That line was drawn in s.65(1) of the Children Act 2004, to which I have already referred, and s.105 (1) of the Children Act 1989.
39. The guiding principle for safeguarding and promoting the welfare of children is described in Article 3(1) of the UNCRC:-
“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child should be of primary consideration.”
40. Article 5 requires respect for the rights and responsibilities of parents to provide appropriate guidance and direction on the exercise of their children’s rights under the Convention. By Article 9:-
“1. States parties shall ensure that a child shall not be separated from his parents against their will…(save where separation is necessary for the best interests of the child).
4. Where such separation results from any action initiated by a State party, such as the detention…of the child, that State party shall, upon request, provide the parents…or, if appropriate, another member of the family, with the essential information concerning the whereabouts of the absent member of the family.”
41. The right of children to express their views freely is enshrined in Article 12. Article 37(c) requires that:-
“every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall have the right to maintain contact with his family,… save in exceptional circumstances.”
42. Article 40 affords children under 18 accused of breaking the law a range of minimal procedural rights including, under Article 40.2(b), guarantees which emphasise the important role of the parent:-
“… to be informed promptly and directly of the charges against him or her and, if appropriate, through his or her parents or legal guardians and to have legal or other appropriate assistance…”
The guarantee under 40.3 requires States Parties procedures specifically applicable to children alleged to have infringed the penal law.
43. The Secretary of State correctly points out that these provisions do not dictate how States, in their discretion, should secure adequate protection for 17 year-old detainees. General Comment of the UN Committee on the Rights of the Child No 10 draws attention to the discretion of States Parties. For example, there is no specific requirement for an appropriate adult in every case. But the significance of all of the relevant International Conventions are that they reveal a broad consensus that those aged 17 should be regarded as children, who must be treated differently from adults and sheltered by special protection designed to meet their best interests.
44. In the past, the executive has explained how the UNCRC has underpinned implementation in England (Department for Children, Schools and Families, the UNCRC: How Legislation Underpins Implementation in England, March 2010). This document points out that international treaties are not automatically incorporated into United Kingdom law and that the United Kingdom will not ratify a treaty “unless the government is satisfied that domestic law and practice means that it can comply” (paragraph 1.2). The document refers to the European Convention on Human Rights and s.11 of the Children Act 2004 (paragraph 8.171-8.173). Unfortunately, this policy document reveals that, certainly in 2010, the government believed that special provisions were in place in relation to juveniles, that is, all those under 18, whilst at a police station. It says:
“8.178 Code of Practice C… sets out the procedures that police officers should follow in relation to detention, treatment and questioning. The Code of Practice includes provisions specifically applicable to juveniles (under 18s). In particular, a juvenile must be provided with an appropriate adult, whilst at the police station, who will be present during any police interview.” (my emphasis)
45. This error is contained in a document prepared by government to give further information to the Joint Committee on Human Rights as to the extent to which UNCRC rights are not already protected by the law (paragraph 1). It is designed to show how the rights and obligations set out in the UNCRC are protected in England “through a substantial body of legislation and by putting the UNCRC at the heart of policies for children and young people” (paragraphs 1.3-1.7). It is of some significance that in 2010 the government believed that included within the scope of special protection were detainees who were aged 17.
46. The failure of the United Kingdom to extend protection to 17 year-olds in detention has not escaped the attention of the United Nations Committee on the Rights of the Child. In its concluding observations on 4 October 2002 the Committee drew attention to “children belonging to the most vulnerable groups, one of which is 16-18 years-olds”. In 2008 (2008 CRC/C.GBR/CO/4) it noted that the principle of the best interests of the child is still not reflected as a primary consideration in all legislative and policy matters affecting children, especially in the area of juvenile justice (paragraph 26). In General Comment no. 10 (207) 25 April 2007, the Committee recommended that States Parties which limit the applicability of their Juvenile Justice Rules to children under the age of 16 or lower years, or which allow, by way of exception, that 16 or 17 year-old children are treated as adult criminals, change their laws with a view to achieving a non-discriminatory full application of their Juvenile Justice Rules to all persons under the age of 18 years (paragraph 38).
47. There can, accordingly, be no question but that the treatment of 17 year-olds as adults when arrested and detained, under Code C, is inconsistent with the UNCRC and the views of the United Nations Committee of the Rights of the Child.
80. … For, once it is accepted that Article 8 is engaged, the Secretary of State cannot resist the application of the principles contained in the UNCRC. It should be recalled that the Home Department, over 11 years ago, accepted that:-
“Where children in custody are concerned the provisions of the Convention (UNCRC) are available to inform the content of ECHR Article 8 (The Queen on the Application of SR v Nottingham Magistrates’ Court  EWHC Admin 802 paragraph 65)”.
81. If more recent authority is required for the proposition that if Article 8 is engaged then it must be interpreted in harmony with the general principles of international law including Article 3.1 of the UNCRC, it is to be found in ZH (Tanzania) v Secretary of State for the Home Department  2 AC 166 and in HH v Deputy Prosecutor of the Italian Republic  3 WLR 90. In both cases, the Supreme Court was unanimous that the principle that the best interests of the child were a primary consideration in an expulsion case and in an extradition case, even if they differed as to precisely how that principle was to be applied. The deployment of Article 3.1 of the UNCRC in the interpretation and application of Article 8 is derived from Neulinger v Switzerland  54 EHRR 1087 paragraph 31. Six years before, in R (R) v Durham Constabulary  UKHL 21,  2 All ER 369 paragraph 26, Baroness Hale said:
“The Beijing Rules are not binding on member States, but the same principle is reflected in the United Nations Convention on the Rights of the Child 1989 (‘UNCRC’), which has been ratified by all but two of the member States of the United Nations. This is not only binding in international law; it is reflected in the interpretation and application by the European Court of Human Rights of the rights guaranteed by the European Convention: see, for example, V v United Kingdom  30 EHRR 121; to that extent at least, therefore, it must be taken into account in the interpretation and application of those rights in our national law.”
In ZH she said:
“23. For our purposes the most relevant national and international obligation of the United Kingdom is contained in Article 3.1 of the UNCRC: (which she then cites) This is a binding obligation in international law, and the spirit, if not the precise language, has also been translated into our national law.”
84. … [O]nce it is acknowledged that Article 8 is engaged and that it must be interpreted in harmony with the UNCRC it follows that those who are 17 fall within the definition of children whose best interests must be a primary consideration. To afford a 17 year-old detainee no more than the rights and protections afforded to an adult is not consistent with the principle that Article 8 is to be interpreted in harmony with the UNCRC.
86. Once it is accepted that Article 8 is engaged then treatment of a 17 year-old as an adult seems to me to be not capable of justification. The Secretary of State contends that the failure to acknowledge a right for an appropriate adult to be informed or to be present is in accordance with the law and pursues the legitimate aim of the prevention of disorder and crime. She denies that it is disproportionate. But the arguments she advances in resisting the allegation that it is disproportionate are a repetition of the arguments I have already identified. They are founded on the proposition that a 17 year-old does not need any consideration or protection different from those afforded to an adult. But the Secretary of State cannot so contend once it is recognised that under the UNCRC and therefore under Article 8, 17 year-olds must not be treated as adults. On the contrary, their treatment in detention must look to their best interests as a primary consideration.
88. Were [the Secretary of State] to acknowledge that the principle that [the child’s] best interests must be a primary consideration applies to 17 year-olds, she would be required at least to amend Code C so as to distinguish between 17 year-olds and adults and make clear that that principle must be applied. Once that principle is acknowledged, there may be, as the UNCRC itself recognises, circumstances in which the best interests of a 17 year-old are not served by informing the parent or permitting the parent to visit. For example, there may be reasonable grounds for believing that the parent was involved in the crime so that the best interests of the child would be better served by obtaining the assistance of a different appropriate adult.
89. I conclude that it is inconsistent with the rights of the claimant and his mother, enshrined in Article 8, for the Secretary of State to treat 17 year-olds as adults when in detention. To do so disregards the definition of a child in the UNCRC, in all the other international instruments to which the Strasbourg Court and the Supreme Court have referred, and the preponderance of legislation affecting children and justice which include within their scope those who are under 18. The Secretary of State’s failure to amend Code C is in breach of her obligation under the Human Rights Act 1998, and unlawful.
98. I conclude that the Secretary of State acted in a way which was incompatible with Article 8 of the Convention in failing to revise Code C so as to distinguish between the treatment of an adult detainee and a detainee under the age of 18. Article 8, read with UNCRC, requires a 17 year-old in detention to be treated in conformity with the principle that his best interests were a primary consideration.
CRIN believes this decision is consistent with the CRC. In particular, Article 1 defines a child as every human being under 18. Article 3 provides that the best interests of the child shall be a primary consideration in all actions concerning children, including in the criminal justice system. The fact that children differ from adults in their development and needs constitutes the basis for a separate juvenile justice system and requires a different treatment for children. The Convention requires every child in conflict with the law to be treated in accordance with the provisions of Article 40. This means that every person under 18 at the time of the alleged commission of an offence must be treated in accordance with the rules of juvenile justice.
 EWHC 982 (Admin)
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