The government has sought to give assurances to the Children’s Commissioner about concerns that a child could be detained without notice to their parents. But are they enough?
Concerns and clarification
Some of the provisions of the Coronavirus Act 2020 have prompted concerns from the Children’s Commissioner’s Office (CCO), which in turn have prompted public alarm on Facebook. The specific concerns are about the prospect of potentially infectious children being detained under the Act without the consent or knowledge of their parents or carers. Those concerns appear to have been allayed in part by subsequent statutory guidance, and clarification given to the CCO by the government. But how reassured should we be?
What do the Act and the Guidance say?
As a starting point, the provisions in the Act for imposing detention and other restrictions and requirements (including for the purposes of ‘screening’) can indeed by applied to children, and in a sense the very point of them is that they do not require consent. The Act says that some of these powers, including the power to detain for and after screening, can usually be imposed on a child only in the presence of ‘an individual who has responsibility’ for them, which can mean either someone who has parental responsibility under the Children Act (essentially, a parent, carer or guardian), or alternatively someone who has ‘custody or charge of [them] for the time being’.
In the scenario where no such person (of either category) is present, the Act allows the powers to be imposed only in the presence of ‘an adult… that the person exercising the power considers to be appropriate, having regard to any views of the child’. But it also requires an ‘individual with responsibility for the child’ to be contacted before the power is imposed ‘if practicable’, and if not, to ‘take reasonable steps’ after that to inform such an individual.
The guidance mainly reiterates these provisions, but also provides two additional grounds for reassurance. The first is that it refers to the ‘individual who has responsibility’ as an adult, which is (unintentionally perhaps) not made clear in the Act itself. The second is that it says that any ‘notices to be given’ under the Act in relation to a child ‘must be given to the individual who has responsibility for the child’.
Does a parent, carer or legal guidance have to be present for a screening to place?
The CCO’s concern was that a child could be detained without the consent of such an individual, and ‘only require[d] reasonable steps to inform’ such an individual if that happened. It appears to have obtained an assurance from the government that ‘a parent, carer or legal guardian has to be present for a screening to take place’, except ‘in the extremely rare case… that a child does not have a parent, carer or legal guardian’.
This would seem to provide a significant guarantee, over and above what the Act provides, in that it would seem to be unacceptable to rely on the presence of someone in the second category of ‘individual with responsibility’, such as a teacher or an older sibling, or the third category of ‘adult consider[ed] to be appropriate’, unless there was no one in the primary category of ‘parent, carer or legal guardian’ in existence (regardless of whether they were present or not).
Is this apparent guarantee authoritative?
There are two reasons, unfortunately, why this apparent guarantee might not be as reassuring as it sounds. The first is that the government’s clarification to the CCO goes on to make two statements that suggest its source may not be authoritative, namely that, after screening and assessment, the child ‘could be asked to self-isolate with their families at home… if they are not voluntarily complying’, and that ‘if the guardian/parent feels that restrictions imposed on the child are unfair, he or she will be able to proceed with the right to appeal to the magistrates’ court’.
While technically true, both of these statements are potentially misleading. Of course, the Act does not merely contemplate ‘asking’ children to ‘self-isolate with their families at home’; it can see them required to ‘remain at a specified place’, including ‘in isolation from others’. This is not just a difference in emphasis; it goes to the heart of the nature of these powers.
A guardian/parent’s ability to appeal to the magistrates’ court
As for the ability of a guardian or parent to challenge restrictions in court, of course this only works in practice if they know about them in the first place. This goes to the heart of the CCO’s original concern, which was that the Act itself does not require a parent or guardian to be told that their child has been detained, only for an ‘individual who has responsibility’ (who, remember, could be someone in the second category, such a teacher) to be present, contacted in advance, or (failing both of those) for ‘reasonable steps’ to be taken to inform them.
On this issue, the statutory guidance is perhaps more helpful than the clarification to the CCO. By requiring that a ‘notice’ under the Act ‘must’ also be given to ‘the’ individual with responsibility, it seems at least to increase the likelihood that any given parent, guardian or carer (if, importantly, he or she is ‘the’ individual concerned) will be told, for instance, that a requirement has been imposed to stay at a specified place in isolation from others. But even this guidance is still not clear or robust enough to ensure that every parent, guardian or carer will necessarily be informed, so that they can exercise the right to bring a challenge in court. So, on that score too, it would seem that the government’s clarification to the CCO has mischaracterised the terms of the Act.
Is the guarantee realistic?
The second reason to doubt the apparent guarantee is that it unfortunately (to borrow the words of the government’s Deputy Chief Medical Officer, Jonathan Van-Tam, in another context) ‘tears the pants out’ of the clear intention of the Act. If a child is indeed potentially infectious, it would be surprising if the serious requirements and restrictions that might otherwise be available could be avoided entirely if a parent, guardian or carer simply refused to be present. That would effectively amount to a requirement for consent from at least one person in that category. That would be welcome for many, but it is frankly unlikely that this is really what the government meant to say. While people exercising these powers are bound to take statutory guidance into account, it is sadly unclear whether they would also be bound by a clarification by the government to the CCO.
Should we be reassured?
So, where does all this leave us? The CCO is right to say that the Act enables a child to be detained without informing an ‘individual who has responsibility’, and parents, guardians and carers are surely right to be concerned that neither it nor the statutory guidance give them an effective right to be informed. Instead, a combination of that guidance, the apparent guarantee provided to the CCO, and human rights law (specifically, the requirement on public bodies to respect individuals’ right to family life) provides something of a patchwork of reassurances.
Together with the inherent unlikelihood (at least, in present circumstances) that such a scenario would arise in practice, the government seems to think that this patchwork of reassurances should be enough. But with an Act that goes so much further than any before in terms of its powers, and in an area so important and emotive as the detention of children, it is surely understandable that many would strongly disagree.
John Binns is a partner at BCL Solicitors LLP. He has written extensively on the powers in the Coronavirus Act to detain potentially infected persons.