The improper detention of children in prison was highlighted by a recent Barnardo’s report. But another manifestation of state maltreatment of children is the illegal overnight accommodation of children in police custody.

The illegal accommodation of children in police custody is a regular occurrence. That these acts contravene two of the more respected pieces of legislation produced in the last 25 years (the Police and Criminal Evidence Act 1984 and the Children Act 1989) only serves to underline the thoughtlessness of such practice.

Section 38(6) of PACE states: ‘Where a custody officer authorises an arrested juvenile to be kept in police detention under sub-section (1) above, the custody officer shall, unless he certifies that it is impracticable to do so, make arrangements for the arrested juvenile to be taken into the care of a local authority and detained by the authority; and it shall be lawful to detain him in pursuance of the arrangements.’

Section 21(2)(a) of the Children Act 1989 stipulates: ‘Every local authority shall receive, and provide accommodation for, children – whom they are requested to receive under section 38(6) of the Police and Criminal Evidence Act 1984.’

So if a custody officer determines a child must be kept in detention overnight, he is required to ask his local authority to arrange appropriate accommodation. Unfortunately, these requests for help have long been fruitless. Either they are ignored or, as commonly, the officers are advised that the authority has no resources available. This is so much a matter of routine that nobody even bothers to try anymore.

Thus children are now locked up overnight (or even over weekends) without a murmur of disapproval being raised, in an adult environment not designed to safeguard children’s needs. One of the cardinal principles enshrined in the 1989 UN Convention on the Rights of the Child, and the 1990 UN Guidelines for the Prevention of Juvenile Delinquency (the Riyadh Guidelines), is that juveniles should only be deprived of their liberty as a last resort and for the shortest possible period of time (see also article 37b of the Convention on the Rights of the Child and rules 13 and 19 of the Beijing Rules). Clearly, the institutional failure to properly accommodate innocent children who need to be detained breaches these conventions and guidelines.

The prevention of serious harm to children, as defined in the Children Act 1989, is an obligation on us all, and it is a particular requirement of all public bodies and agencies that deal with children or provide them with services. Given the agreed vulnerability of children, it is not hard to envisage that children would experience one or more nights in police custody as traumatic and damaging.

Children also need to be treated equitably. The persistent failure of local authorities to provide appropriate facilities has been attributed to the relativist argument that providing such amenities will deprive other more vulnerable children who also need accommodation. Such thinking fails to grasp the legal requirement for the equitable treatment of all children whatever their background or needs.

This failure of fair treatment of children in police custody is probably linked to increasingly tight sentencing policies with regard to children. But that does not excuse the situation, and neither does the current pressure on the ‘children in care’ system, which may itself have started this passive avoidance of bed provision.

But at the heart of this problem lies funding. If money to keep children safe while in police detention were properly budgeted, this practice would not be an issue. Funding crises exist throughout all levels of national and local government. The Ministry of Justice, the Department for Children, Schools and Families and the Home Office will all call for budgetary restraint in these troubled times.

But somebody, somewhere is not putting aside enough money to keep children safe. And given that this is a national problem, the answer to the question ‘who is breaking the law with regard to safe detention of children in police custody?’ probably lies within government.

Perhaps they should read the legislation again.

Dr Peter Green works as a forensic medical examiner for the Metropolitan Police Service and as designated doctor for child safeguarding at St George’s Hospital and NHS Wandsworth