3. Memorandum submitted by the Association
of Directors of Social Services (ADSS)
1. The ADSS represents the Directors of
Social Services in England, Wales and Northern Ireland. Directors
of Social Services are responsible through the activities of their
departments in local authorities with social service responsibilities
for the well being, protection and care of vulnerable people including
older people, people with disabilities, people with mental health
problems and children in need and their families. In the main,
this submission will restrict itself to commenting on anti-social
behaviour as it impacts upon children and young people as the
submission has been drafted through our Children and Families
Committee and it is in this area that we have our most significant
concerns about the direction and implications of government policy.
2. In summary our concerns are to do with:
the appropriateness of anti-social behaviour measures, especially
Anti-Social Behaviour Orders (ASBOs), to children and young people;
the subsequent potential for increasing numbers of children to
be inappropriately "criminalised"; the links between
these measures and the unacceptable levels of children held in
custody or secure; the apparent lack of a standardised or proportionate
approach to the use of these measures nationwide; some of the
broader as well as specific implications for children's welfare;
a subsequent concern that these measures may not lead to safer
communities in the longer term.
3. As an organisation, ADSS is conscious
that it may be accused of espousing stereotypical liberal views
on such matters and we think it is therefore important to confirm
our policy position with regard to youth crime and anti-social
behaviour. We fully support the Government's commitment to the
prevention of youth crime for two primary reasons. Youth crime
is obviously bad for the community and is a particular problem
for the more vulnerable sections of the community for whom we
hold a level of responsibility, whether that is because they may
have been victims of crime or because they live in fear of crime.
But youth crime is similarly bad for the young offender both because
serious and persistent offending represents a deficit in the quality
of care a child may have received and because offending behaviour
is bound to prejudice the individual outcomes for that child.
Therefore any reservations we have about the Government's approach
to dealing with crime and anti-social behaviour are not to be
caricatured as a blinkered defence of young offenders. Our major
concern rather is that the strategy should be an effective one
which has a long term impact on youth crime and anti-social behaviour
for the sake of protecting communities and promoting better outcomes
for children and young people. Whereas we think that some excellent
progress has been made in recent years on youth crime, we think
there is a serious absence of a measured and evidence based approach
to anti-social behaviour.
4. In our response to the Green Paper "Every
Child Matters" and the accompanying "Next Steps"
document on youth crime we highlighted the potentially contradictory
messages emanating from government. On the one hand children and
young people are perceived as young, potentially vulnerable and
in need of protection and investment. On the other they are seen
as being out of control, violent and responsible for much crime
and anti-social behaviour. We believe that it was a fundamental
error for the Government to segregate its policy approach to youth
crime from the more ambitious and constructive approach to all
other areas of children's services. The ADSS firmly believes that
children and young people should be valued throughout their childhood
and adolescence, including those whose early experiences have
contributed to a life style of exclusion and anti-social behaviour.
With regard to the causes of anti-social behaviour
we would distinguish between three separate categories of anti-social
behaviour among children and young people each of which has a
separate but related group of causes. The first category is anti-social
behaviour which is in effect sub-criminal behaviour. That is when
individuals or groups are considered to be "terrorising"
a particular neighbourhood through a pattern of apparent criminal
acts which for whatever reason are not being prosecuted through
the due criminal process. In our analysis there has to be a strong
correlation between the causes of this sort of behaviour and the
causes of other forms of youth crime as, for example, evidenced
in research conducted by the Youth Justice Board and summarised
in their Annual Report 2003. The second category is that which
is closest to the original understanding of what constituted anti-social
behaviour, namely non-criminal behaviour which nevertheless causes
nuisance and aggravation and may be seen as a precursor to criminal
behaviour. Again we consider there to be links with the first
group of causes but with an arguable heavier emphasis on the need
for basic communication and education to those concerned about
the consequences of the behaviour upon their fellow citizens and
in the longer term upon themselves. Our third category is the
"lesser" matter of children and young people deemed
to be anti-social simply by virtue of their gathering in public
places and in various minor ways crossing the threshold of tolerance
within a local area or community. Clearly this is a tenuous category
for the purposes of this committee but we consider it worth mentioning
because we are increasingly concerned not just with the effects
of genuine anti-social behaviour, but also with the implications
for children and young people of communities which are becoming
intolerant of their place in the public realm.
5. Our critical point about tackling the
causes of anti-social behaviour, in whatever form, is that any
response can only be effective if it is part of the integrated
strategies within local communities and agencies to address other
aspects of need and vulnerability among children and young people.
This is a further reason why we are deeply concerned about the
separation of anti-social behaviour responses from other strategic
responses to children and young people. The causes of anti-social
behaviour chime with the causes of many other forms of vulnerability
among children and young people and any strategy which seeks to
address anti-social behaviour in isolation is in our view deeply
flawed. We believe existing measures ranging from ASBOs to Dispersal
Orders are essentially reactive and that tackling the route causes
of all forms of anti-social behaviour depends upon a proactive,
integrated range of measures ranging through education, support
to parents, and provision of effective facilities through to reactive
and punitive measures. We recognise that a number of these measures
are developing but we think the emphasis of the response is too
heavily weighted on the short-term reaction and not focussed strongly
enough on integrated prevention.
6. The introduction and subsequent evolution
of Anti Social Behaviour Orders (ASBOs) has served to further
confuse the picture for children and young people. During the
passage of the Crime and Disorder Bill in 1998 the then Home Office
minister Alun Michael made it clear that children and young people
were not intended to be the main targets of these orders, stating
"Their use against juveniles, especially those at the younger
end of the age range, would be exceptional." (ref. Standing
Committee B, 30 April 1998, Hansard). In practice however 58%
of ASBOs between April 1999 and September 2000 were made against
those under the age of 18 (Home Office Research Study 236).
7. The anti social behaviour legislation
blurs the distinction between criminal and non criminal behaviour.
Many criminal offences are included within the list of behaviours,
published by the Home Office, which may be defined as anti-social.
This has resulted in a "twin track" approach, with little
or no consistency over whether the criminal or civil route is
taken to curb the behaviour, and leads to a great deal of confusion
amongst young people, their families and the agencies involved.
It is the view of the ADSS that if criminal behaviour is to be
punished then it should be done so through the criminal justice
system, thereby leaving the civil court to hear cases of genuine
sub-criminal behaviour. Arguably, the existing measures simply
allow for prosecution of children and young people on a lesser
burden of proof but with significant long term implications for
their future lives. Moreover, there is a requirement in law for
an ASBO to be proportionate and appropriate. However given that
the minimum period for an ASBO is two years it is difficult to
know whether the ASBO is indeed proportionate, particularly when
compared to a criminal prosecution where the result for a first
time offender is likely to be a Referral Order which lasts between
three months and one year. While the ASBO itself is a civil order
any non compliance with the terms of the order becomes a criminal
offence through breach proceedings. This in turn causes further
confusion where a young person may receive a criminal sentence—or
even custody—for breaching an order given for a non criminal
action.
8. Clearly the most extreme forms of breach
may involve the use of custody for a young person who has potentially
committed no criminal offence. ADSS believes there is a place
for the use of detention among the most serious offenders but
this should be an exceptional disposal. We are gravely disappointed
that over the past seven years the numbers of children and young
people detained in secure units or in custody has risen so sharply
and we consider this to be an indictment of government policy
towards children and young people as well as towards tackling
offending. As well as being a dangerous and expensive response
the use of custody generally does not work as evidenced by the
rates of recidivism. The assessment of risk to self or others
as a threshold for the use of custody appears to have been lost
and we are hearing anecdotal evidence about recent increases in
the use of custody in breached ASBOs among young people. This
comes at a time when there is a critical shortage of places especially
within local authority secure accommodation for those young people
who are in genuine need of such an extreme response.
9. Our experience nationally is that there
is a wide and dangerous disparity in the use of ASBOs and we think
there is an urgent need for a review of the application of guidance
and for the introduction of mechanisms which would lead to a more
standardised and therefore fairer approach. In our view some areas
interpret the guidance as an encouragement to seek an ASBO at
an early stage and in ways which therefore lead to the premature
criminalisation of children. We would commend the practice as
we understand it in Devon and Cornwall where a collectively agreed
protocol introduces a three staged approach before the application
for an ASBO including targeted interventions to promote pro-social
behaviour. We believe this approach to be proportionate, effective
and efficient for all agencies. We are acutely aware however that
it is an approach which would not satisfy some of the more populist
agendas which influence this area of practice.
10. The ADSS fully supports the involvement
of parents and carers in any action taken to prevent and reduce
anti-social behaviour. However we do not believe that a parenting
order should me made whenever a child or young person is made
subject to an ASBO. The current rationale appears to be that poor
outcomes eg anti-social behaviour are a consequence of bad parenting.
What is more important than imposing a parenting order is to understand
the underlying causes of the behaviour and then to work with the
parents in addressing such causes. This can best be achieved through
adopting a "whole family" approach as for example with
family group conferencing, interventions that are likely to be
more successful if undertaken on a voluntary basis. We consider
parenting orders to be a useful tool, but only if there is evidence
to suggest the family concerned will not co-operate voluntarily.
It is our experience that enforced co-operation is less likely
to succeed in most cases.
11. We are particularly concerned about
the privacy arrangements for children and young people made subject
to an ASBO. Because ASBOs are civil measures there is not the
same presumption in favour of reporting restrictions to withhold
identification as exists for children in criminal proceedings.
We question the benefits in having children's names and photographs
published in the local media and distributed in the local community.
Our view is informed by evidence that some children so named have
become the victim of violence and intimidation as a result. We
believe we have a duty of care to the children and young people
whose anti-social behaviour we are trying to reduce. Any behaviour
that puts children at increased risk of physical harm is in conflict
with our professional values and surely at odds with the intentions
behind the current Children Bill. We believe these forms of publicity
have no proven effect on the reduction of anti-social behaviour
in communities, that they reinforce the general stigmatising of
young people and thus potentially still further reduce a community's
tolerance and that, while rendering the individual child at risk
are in many cases regarded as a perverse "badge of honour"
by that same child—the publicity affirms their status among
peers.
12. RECOMMENDATIONS
On the basis of the above concerns, and recognising
that the exisiting anti-social behaviour legislation is not likely
to be substantially reformed in the near future, we would suggest
the following recommendations could be given consideration by
the committee in the course of its work.
(i) The Government should take steps to
assert the primacy of the role of Children and Young People's
Strategic Partnerships in developing strategies and services to
tackle anti-social behaviour among children and young people at
a local level. We recognise the importance of Community Safety
Partnerships (or CDRP's) in this function and clearly their engagement
needs to be retained but at present local and national planning
mechanisms do not sufficiently integrate responses to ASB with
broader children's services and until this happens our responses
will remain reactive and short-term.
(ii) Similar steps should be taken at a
national level to ensure better integration of ASB strategy with
the broader and more constructive agenda outlines in "Every
Child Matters". In particular it should be clear that the
five outcomes for all children apply also to children and young
people engaged in offending or anti-social behaviour.
(iii) There should be a requirement that
before any ASBO is sought on a child or young person then the
relevant YOT should be engaged to conduct a pre-court assessment
of the circumstances as is the case for any child accused of committing
a crime.
(iv) We applaud those authorities that have
developed a stronger preventative approach to anti-social behaviour
by the introduction of initiatives such as Acceptable Behaviour
Contracts (ABC's) and believe the Government should do more in
guidance to encourage comparable work consistently throughout
the country.
(v) We believe there is an urgent need for
clarification of the sorts of behaviour that qualify as anti-social
behaviour and those definitions should preclude the use of ASBO's
as an alternative route to prosecuting children and young people
for criminal behaviour.
(vi) We believe that consideration should
be given to ensure that applications for ASBO's on children and
young people should be dealt exclusively through the Youth Courts
which are appropriately trained and experienced.
(vii) There is an urgent need to curtail the
use of custody or secure accommodation as an option for the breach
of an ASBO by a child or a young person.
(viii) There is a need to review the management
of reporting restrictions on children who are made subject to
ASBO's for the reasons outlined in paragraph 11 above.
(ix) There should be research on the use
of ASBO's and related powers with a particular focus on two aspects:
research concerning the consistency or otherwise of the application
of these powers across the country; research which explores the
effectiveness of these measures.
15 September 2004
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