HC (A Child,), R (on the application of) v Secretary of State for the Home Department & Anor

Article 8, interpreted in harmony with the United Nations Convention on the Rights of the Child, requires 17-year-old detainees to be treated as children rather than adults. Their best interests must be a primary consideration, and the detention regime must recognise their vulnerability and need for family support and appropriate assistance.

A Code of Practice which gives 17-year-olds no greater protection than adults, including permitting delay in notifying parents and providing no general right to an appropriate adult, is incompatible with Article 8. The Secretary of State acted unlawfully by failing to revise Code C so as to distinguish between adult detainees and detainees under 18.

The claimant, aged 17, was arrested on suspicion of robbery and detained for approximately 11½ hours. His mother was not informed for several hours and he was denied access to her. No charge was brought.

Code C, issued under the Police and Criminal Evidence Act 1984, treated persons appearing to be under 17 as juveniles but treated 17-year-olds as adults. The Secretary of State accepted that she had power to revise the Code, subject to parliamentary approval, but declined to do so. The judicial review concerned whether that refusal was lawful, principally under Article 8 of the Convention and, alternatively, Article 6.

1. The claim against the Secretary of State succeeded. The court did not need to determine irrationality because the Secretary of State had a statutory duty under section 6(1) of the Human Rights Act 1998 not to maintain a Code incompatible with Convention rights.

2. Article 8 was engaged. The right to family life includes the establishment, development and maintenance of family relationships, including in the context of detention. The relationship between a detained 17-year-old and a parent, and the parent’s ability to provide support, fell at the heart of family life.

3. Article 8 had to be interpreted in harmony with general principles of international law, including article 3(1) of the United Nations Convention on the Rights of the Child 1989. That Convention defines a child as a person under 18, subject to an earlier age of majority. The best interests of a 17-year-old detainee therefore had to be a primary consideration.

4. The existing Code failed that requirement. It treated 17-year-olds as adults, allowing delay in notifying a parent and providing no general entitlement to an appropriate adult. The Secretary of State’s reasons merely defended the existing adult regime. They did not establish why 17-year-olds should receive no greater protection than adults, or why that approach was consistent with their best interests.

5. An appropriate adult was not a substitute for a solicitor. The appropriate adult’s function was to help redress the imbalance between a young detainee and the criminal justice system, explain the importance of legal advice, and provide assistance from someone familiar and trusted. The possibility of additional cost and delay did not answer the legal objection.

6. The court recognised that a revised regime might distinguish between 17-year-olds and younger children, and that the best interests of a 17-year-old might exceptionally favour assistance from someone other than a parent. The precise practical arrangements were for the Secretary of State and those operating the criminal justice system.

7. Article 6 did not need to be finally determined. The court nevertheless considered that the preparatory stages of criminal proceedings may attract protection, and that children must be dealt with from the earliest stages of investigation with regard to their age, maturity, vulnerability and capacity to participate.

8. The present Code was unlawful because it failed to distinguish between adult detainees and detainees under 18. Written submissions were invited on the form of relief. No separate relief was warranted against the Commissioner of Police because the police had followed the Code.

First-instance judicial review in the Administrative Court. The judgment records no earlier appellate decision in the same proceedings.