Ensuring custody as a last resort

The AYJ is working alongside its members and children and young people, aiming to ensure that custody is used as a last resort for children in England and Wales, and for the shortest appropriate period of time.  

What’s the problem?

The children’s secure estate is in crisis. Longstanding failures to meet children’s needs and uphold their rights have been exacerbated by the pandemic and a lack of national strategy, making it more obvious than ever that children must be kept out of custody wherever possible. Since reaching a peak in the early 2000s, the number of children in custody has fallen significantly and is currently at a historic low. However, custody continues to be used not solely as a last resort, nor is it only being used for the shortest appropriate period of time, as prescribed by the UN Convention on the Rights of the Child.  

Custody numbers have fallen in line with overall reductions in numbers of children coming into the youth justice system. Without a clear, long-term vision and changes to legislation and practice, the door is wide open for a reversal of this downward trend. Such a reversal has been predicted by the Ministry of Justice and HMPPS, in part due to measures in the Police, Crime, Sentencing and Courts Act 2022, which embody a punitive turn towards increasing the use and length of custody for children. The government expects the number of children in custody to more than double in coming years, although there are doubts forming about this prediction.  

There is no evidence that harsher custodial sentences contribute towards rehabilitation or promoting positive outcomes for children, and there is no evidence that the threat of harsher custodial sentences deters children from offending. Meanwhile, there is abundant evidence that imprisonment is extremely harmful to children and disrupts their healthy long-term development. The expectation and apparent resignation, given the lack of strategy or action, from the government that the number of children in custody will climb must be strongly challenged and resisted.  

What needs to change?

The impressive reduction in the number of children in custody in recent years can lead to a false complacency regarding the need for action, and a misplaced assumption that custody is currently used as a last resort. More awareness is needed among policymakers that this is not the case, and that while current numbers are relatively small for England and Wales, there is so much more that must be done.  

The government should be doing everything in its power to prevent the expectation that custody numbers will more than double from becoming a reality. Yet there is a complete absence of a clear vision or ambition for children in custody, which needs to be rectified with a national strategy for the future estate, developed with full and open consultation. 

Primary legislation is one of the most powerful tools with the potential to minimise the use of custody. Creation of a clear legislative framework restricting the use of custody for children in all circumstances would guard against projected rises. 

Why now?

With the number of children in custody being at a low, this presents a key opportunity to think radically about keeping children out of the estate. Yet the lack of action and punitive attitudes across government risk wasting this opportunity and seeing custody numbers climb. Alarm bells are ringing about how an estate already on its knees will be drawn further into deep crisis, should this happen. If the right action is taken now, the projected increase in the number of children in custody need not become a reality. 

Why the AYJ?

The AYJ and our members have proposed new legislative thresholds for sentencing and remanding children to custody, and were successful in securing parts of this in the new remand threshold in the Police, Crime, Sentencing and Courts Act. We are well placed to continue developing this work, and continuing our call for a national strategy. AYJ members work within custody and in courts, support the End Child Imprisonment campaign, and we have strong links with the Youth Custody Service and Ministry of Justice.