If the last five years have taught us anything it’s that nothing is permanent. Progress isn’t linear, it ebbs and flows and sometimes reverses direction.

The huge drop in the number of children in prison in England and Wales, to a quarter of what it was a decade ago, was the subject of The Sheila McKechnie Foundation’s first change network seminar last week. The event looked at how this was achieved, what we can learn from it, and what’s left to do. Transform Justice’s director Penelope Gibbs was on the panel.

Some people feel that those campaigning for further reductions in the number of children in the justice system are squeezing a rag that’s already dry – that the point of diminishing returns has been met. But there are some indications that things may be moving in the wrong direction. One such trend is the increased use of imprisonment of children before their trial (remand).

Numbers on remand reduced by more than half 2008-2016, but they have been increasing since 2016, unlike the sentenced population which continues to fall. And two thirds of those remanded do not go on to get a custodial sentence, which suggests that they perhaps should not have been remanded in the first place.

Transform Justice published a report on use of remand for children in 2018. We found that more children are remanded than is necessary, often for reasons that have little do with the risk they pose. Time-pressured YOT workers can’t put together a bail package quickly enough for the first remand hearing, alternatives may not be explored by the prosecution or the defence, and there’s no accommodation for those children who, for whatever reason, can’t return home.

The problem wasn’t legislation – youth remand law, while not watertight, allows a good defence lawyer to argue the case (often successfully) for bail in almost every case. Guidance for prosecutors, magistrates and defence lawyers makes the right noises. But the spirit of the law and guidance wasn’t reflected in practice. Too many children were still being imprisoned before their trial.

So our recommendations focussed on changing practice, through better training, updating protocols, improved audit trails etc. But the response we often got – from police, YOT workers, magistrates, prosecutors – was along the lines of “all we’ve done is all we can do”.

The CPS (Crown Prosecution Service), for example, weren’t convinced they could do more to avoid remanding children. At the time, they pointed to their guidance to prosecutors which said all major decisions in the youth court should be made by a specialist youth prosecutor who is trained in the specifics of youth justice. But it wasn’t clear whether recommending to refuse bail counted as a major decision.

A recent review from HMCPSI (which inspects the CPS) suggests that bail/remand decisions are not sufficiently prioritised. HMCPSI found that youth policy and guidance was not fully applied in most cases and that there were “regional discrepancies” in the quality of casework in youth cases. They also found that, more often than not, arguments for and against remand or bail were not properly set out, and prosecutors did not fully consider if remand was necessary. Key remand decisions were made without involvement of youth specialist prosecutors. Where youth specialists were involved, they were not always sufficiently trained or experienced.

But as our research showed, prosecutors are not the only ones who could influence a reduction in remand. Youth offending teams could set up systems allowing them to start working on bail packages earlier, so they have time to put forward a convincing proposal for managing the child in the community. Courts could ensure no child appears before a bench without a youth-trained magistrate on it. Defence lawyers could always oppose the refusal of bail (which they don’t always do).

Latest figures show 38% of the child custody population is on remand (the highest ever percentage). For the first time ever, more children are on remand than are serving a detention and training order sentence. What’s especially troubling is that by remanding so many children to prison, we discriminate against children from ethnic minorities. In 2018, over half (54%) of children remanded to custody were from black and minority ethnic backgrounds. This figure is greater than the over representation of minority children in prison generally (45%) and significantly more than general 10-17 year old population (18%). Research shows that BAME defendants are more likely to be acquitted or their cases discontinued than other defendants. We don’t know why there has been a spike in remand, or why the proportion of BAME children on remand is so high – research needs commissioning to understand this. One answer may be the increase in prosecutions for knife-crime related offences, prompted by a belief that criminal sanctions can curb serious youth violence.

Last year, the Council of Europe’s Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment put England’s prisons under the microscope. They pointed out that many children remanded in custody were subsequently discharged without being sentenced, an indicator that they probably didn’t need to be remanded in the first place. The government published its response to the report today, saying it aims to “develop options by summer 2020 to reduce the number of children remanded to custody where it is appropriate to do so and while ensuring victims and the public are protected.” Maybe we are on the road to making child remand a genuine last resort.