The duty under s.11 of the Children Act 2004 (and the statutory guidance in relation to the duty) to safeguard and promote the welfare of children has received detailed consideration by the Divisional Court (Pitchford LJ and Supperstone J) in Castle & others v Commissioner of Police for the Metropolis [2011] EWHC 2317 (Admin) https://www.bailii.org/ew/cases/EWHC/Admin/2011/2317.html.
The case arose out of the demonstrations against the increase in tuition fees and abolition of EMA in November 2010. The three claimants were school children, aged 16, 16 and 14 respectively, who were peaceful participants “kettled” by the police in Trafalgar Square for several hours. They challenged their containment by way of judicial review alleging, amongst other things, breach of s.11 of the 2004 Act and breach of ECHR, Articles 5, 8, 10 and 11. Section 11 applies to a number of public authorities, including the police, and requires that “Each person and body to whom this section applies must make arrangements for ensuring that (a) their functions are discharged having regard to the need to safeguard and promote the welfare of children; and (b) any services provided by another person pursuant to arrangements made by the person or body in the discharge of their functions are provided having regard to that need (s.11(2)). There is also an obligation in discharging this duty to have regard to guidance issued by the Secretary of State (s.11(4)). The claimants argued that this required the Met’s planning for policing the demonstrations to embrace the need to safeguard and promote the welfare of children, so as to ensure that children would not be confined within crowd containment or were confined for the minimum period necessary.
The parties adopted different approaches to the scope of s.11: the Met argued that the duty only applied to institutional matters, such as planning and training, rather than the operational decisions to implement and maintain containment on the day of the demonstration; while the claimants argued that the requirement to have specific regard to their duties towards children applied to those operational decisions.
The Court sided with the claimants on this issue. Applying the obiter dicta remarks of Baroness Hale in ZH (Tanzania) v SSHD [2011] UKSC 4 and In re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27 that the purpose of s.11 was to incorporate the UK’s obligations under the UN Convention on the Rights of the Child, including that the rights of children be a primary consideration in decision-making, the Court held that the chief officer’s statutory obligation was not confined to training and dissemination of information, rather “[i]t is to ensure that decisions affecting children have regard to the need to safeguard them and to promote their welfare”. This did not mean that the duties and functions of the police had been redefined and the impact of the duty would depend on the function being performed. However, in performing his duty to detect and prevent crime a police officer must, as the circumstances require, have regard to the statutory need.
The Court then considered whether a breach of the s.11 duty always renders a decision unlawful. The Court concluded that it was unlikely that, in the general performance of police work, there would be circumstances where that would be the case, because “it will be in rare circumstances that the failure to have regard to the statutory need will have any relevant impact upon or will qualify the ambit of the power [a police officer] is exercising”. However the duty would still be relevant to the issue of lawfulness of the containment. The Court further held that in the context of the duty on the Met to avoid interference with freedom of movement and therefore, where practicable, plan for alternatives to containment, the s.11 duty required that planning, either in advance or at the time the decision to contain was made, should, where appropriate, embrace the need to safeguard children and promote their welfare.
Applying these principles to the facts, the Court held that at the planning stage the Met did have regard to the statutory need. The officer in charge received, shared and sought further intelligence on the possible involvement of schoolchildren and at the planning stage there was no occasion to make specific arrangements for the management of children because there was no intelligence that they would attend in significant numbers. The officer had reminded his subordinates to protect the needs of the vulnerable, which was intended to include children. The Court further held that the claimants had not suggested any alternative to containment. There had been a plan to release vulnerable persons and officers on the ground and in a police helicopter repeatedly sought to identify child demonstrators, particularly those in school uniform (the claimants were not in school uniform), so that they could be released. Nor, the Court held, was the period of containment of excessive duration. The Court therefore concluded that, while s.11 requires chief officers of police to carry out their functions in a way that takes into account the need to safeguard and promote the welfare of children, that duty had been discharged.