10. Memorandum submitted by The Children's
Society
1. INTRODUCTION
1.1 The Children's Society is a national
children's charity working with around 50,000 children and young
people in 90 projects across England. Our projects provide a wide
range of services in communities and work with a wide range of
children and young people including young offenders, young refugees,
disabled children and young people, and children and young people
at risk on the streets.
1.2 This memorandum is informed by our practice
experience, consultations with children and young people and our
policy and research into this area and related subjects.
1.3 The Children's Society recognises the
impact that anti-social behaviour can have upon neighbourhoods
and communities and the need to tackle that behaviour by methods
that encourage respect and responsibility. We are acutely aware
of the particular effect that anti-social behaviour can have on
the lives of children and young people and their families, not
least because children and young people are the first to tell
us that they experience those problems; they want to feel safer
in their communities, and intimidation, drugs and bullying on
their streets to stop. However The Children's Society is concerned
about the impact of what could broadly be described as the "new
anti-social behaviour agenda" on children, young people,
their families and communities.
2. WHAT IS
ANTI-SOCIAL
BEHAVIOUR?
2.1 The Social Exclusion Unit[6]
has identified that there is no clear definition of anti-social
behaviour and a more recent report for the Office of the Deputy
Prime Minister[7]
highlights the level of subjectivity involved in deciding what
constitutes anti-social behaviour.
2.2 The Cabinet Office's Policy Action Team
highlighted the vagueness of the term, in their PAT 12 report[8],
and the implications of it for young people, pointing out, the
subjectivity of the term is wide open to prejudice against young
people. Many children and young people are telling us that they
do not understand the term, but they feel that it is targeted
towards them.
2.3 Research being undertaken by our Children
in Neighbourhoods in London Project indicates that young people
aged 9-13 are confused or in some cases have no sense of what
anti-social behaviour measures are or what they mean and hence
would not know what behaviour they should not engage in to avoid
having measures used against them.
2.4 One of the critical problems with the
passage of the Anti-social Behaviour Act 2003 was that there was
no coherent or explicit communication with children and young
people. Ninety percent of children and young people aged 10-16
consulted in an NOP England-wide poll stated that they believed
that young people should have been consulted before dispersal
and curfew orders were brought in[9].
Young people at one of our Children's Fund projects in Kent felt
clearly targeted and labelled by the measures contained in the
Act stating:
"We know the Bill isn't just about young
people but we are the main group getting punished"
"It makes all young people look bad".
3. CHILDREN &
YOUNG PEOPLE
IN COMMUNITIES
3.1 The Committee asks for evidence about
the causes of anti-social behaviour and the effectiveness and
proportionality of current powers. In order to assess we recommend
that the Committee consider what place and space is created for
all children in our communities.
3.2 Research undertaken for National Playday
2003, demonstrated how fear and intolerance of children being
outdoors is impacting on children's normal healthy play and their
sense of acceptance and belonging in their communities. Two-thirds
of the 2,600 children aged 7-16 questioned for the Playday survey
(coordinated by the Children's Play Council and The Children's
Society) said that they like to play outside daily, mostly to
meet friends. [10]However:
— Four in five (80%) say they have
been told off for playing outdoors;
— Half (50%) say they have been shouted
at for playing out;
— One in four (25%) aged 11-16 were
threatened with violence.
4. CHILDREN'S
RIGHTS
4.1 We remain concerned that the rights
and freedoms of children and young people under domestic and international
law are not being respected or considered in many of the measures
set out to tackle anti-social behaviour. We draw particular attention
to children's right to play under Article 31 United Nations Convention
on the Rights of the Child (UNCRC) and their right to freedom
of association under Article 11 of the Human Rights Act 1998 and
Article 15 UNCRC.
5. CRIMINALISATION
OF NON-CRIMINAL
ACTIVITY
5.1 Children in England are held to be criminally
responsible from the age of 10 and anti-social behaviour measures
can be used against children from that age. The Children's Society
like many other organisations and the United Nations Committee
on the Rights of the Child[11]
believe that this is too low. There is a blurring of the lines
between criminal and non-criminal activity, which can be quite
confusing for young people. As one young person states:
"I shouldn't be on an ASBO because I've
not got any convictions. I don't go robbing, fighting, bullying
or terrorising. I don't take drugs or drink on the streets. .
. the only thing I have done wrong is hang around in a group and
then I did nothing wrong" (young person awaiting appeal)
5.2 This is very concerning given that breach
of many of the anti-social behaviour measures including Anti-social
Behaviour Orders and Dispersal of Groups under section 30 of the
Anti-social Behaviour Act 2003 is a criminal offence.
5.3 One of the key concerns that has been
raised by children and young people that we work with both in
relation to the application of ASBOs and the imposition of dispersal
and curfew orders is that they often feel that they are being
"got at" and targeted by particularly powerful people
within their communities. This is particularly so in relation
to section 30 orders and the subjective nature of the grounds
for its application. (section 30(1))
6. DISPERSAL
AND CURFEWS
(SECTION 30 OF
THE ANTI-SOCIAL
BEHAVIOUR ACT
2003)
6.1 In its scrutiny of the Anti-social Behaviour
Act 2003, the Joint Committee on Human Rights (JCHR) [12]was
critical of section 30 and questioned its proportionality.
6.2 An Independent Legal Opinion[13]
from Anthony Jennings QC also advised that the Bill contained
significant potential breaches under the Human Rights Act 1998:
" . . . If a constable between 9pm and 6am finds
someone who he reasonably believes is under 16 and they are not
in the effective control of a parent, that young person may be
removed. How can this be categorised as `serious anti-social behaviour'?
This is nothing short of a nationwide curfew on young people under
16. . . In my opinion this provision engages and breaches Article
5. . . There is also potential breach of Article 8 because of
the right to privacy and lack of any justification for infringement
under Article 8(2)."
6.3 It is too early to assess what the real
impact of imposition of dispersal and curfew orders is having
on children and young people and communities. The imposition and
meaning of dispersal and curfew orders is not being widely publicised
or made clear to young people in a language that they understand.
Notification of an order recently by Bedfordshire Police[14]
simply referenced the relevant section of the Act with no indication
of what that means.
6.4 Despite an assurance given by the Minister,
the Baroness Scotland of Asthal that the guidance on section 30
of the Act would require police and local authorities to consult
with the local community[15],
including children and young people prior to issuing an authorisation,
the powers have come into force but the guidance (under section
34 of the Act) is yet to be issued. One of the critical measures
must be how far children and young people and their families are
being involved and consulted in the imposition of the orders under
section 30 of the Act.
6.5 With the proliferation in the use of
curfew and dispersal powers across the country during the summer
months, their impact on children's rights to gather, play and
socialise in public spaces within their communities must be a
priority for examination and evaluation.
6.6 Children are not only entitled to freedom
of association and to play, but there is widespread concern that
children being increasingly less physically active is contributing
to mental and physical ill health and obesity. The impact of anti-social
behaviour measures on children, and whether they are proportionate
and justifiable, should be assessed not only by their effect on
problem behaviour, but by a wide range of factors, including their
impact on children and young people's opportunities for play outdoors,
their impact on community relations and their sense of belonging
in their community.
7. ANTI-SOCIAL
BEHAVIOUR ORDERS
(ASBOS)
7.1 Local authorities are developing often
very different policies with regard to the use of ASBOs with the
result that the same behaviour is being addressed in very different
ways depending on locality.
7.2 Some areas measure their success by
the high number of ASBO's on children. Some councils are using
ASBOs extensively; Manchester City Council recorded the highest
numbers of ASBOs issued in England and Wales (422 from April 1999
to 31 March 2004)[16].
7.3 Other areas have committed themselves
to prevention as a general approach and are focussing their efforts
on preventing ASBO's from being made in the first place, through
community based initiatives, through the attention of Youth Inclusion
and Support Panels and the use of Acceptable Behaviour Contracts.
As one LA officer has stated, "Every ASBO is a failing of
the council to meet a young person's needs".
7.4 The Home Office Review of ASBOs[17]
reported that 58% had been made against under 18s. When ASBO's
were introduced through the Crime and Disorder Act 1998 they were
primarily targeted at adults; tenants in particular. It is important
to consider whether they were ever really designed with young
people in mind in order to assess whether they are effective,
appropriate and proportionate.
7.5 Through the work of our Manchester Youth
Bail Support Project we know that many young people often do not
understand why an order has been placed on them, nor what the
conditions of the order mean. This is particularly concerning,
given that breach of an order is a criminal offence. Looking at
some of the conditions that are applied to young people demonstrates
how easy it is to breach an order and to effectively be drawn
into the criminal justice system. Orders can be applied to children
as young as 10 and conditions can involve[18]:
— Being banned from the estate the
young person is living on;
— Not associating with children and
young people on their estate;
— Not being able to enter certain areas
which often have local amenities such as shops and youth clubs;
— In one case a young person's home
was in the exclusion zone and he had a bail condition to reside
at his home address;
— "Only being allowed with three
people stops my son playing most sports," (parent);
— "I find it difficult . . . I
can't play out as there are always more than three people out
there and I'll end up breaching my ASBO. I can't play football
with my friends any more" (12 year old on ASBO).
For some families the only possible way to assist
young people to comply with the orders and to avoid breach and
a criminal conviction is to move out of the area.
7.6 The 2002 Home Office Review of ASBOs
highlighted that in around one in 10 of the cases they looked
into in detail the young person subject to an ASBO had a learning
or other educational difficulty. The Committee should question
whether the procedures for ASBO's were ever really designed with
these children in mind, and how are they being made understandable
to children.
7.7 Having seen some success in reducing
the numbers of children in custody during 2002-03, it was disheartening
to hear the Youth Justice Board's report of a reversal in that
trend earlier this year[19].
Anecdotal evidence coming directly from the secure training centres
and prisons appear to indicate that ASBO breaches have contributed
to that rise.
7.8 It is also important to note the practice
of deferring ASBOs on young people going into custody until they
come back out. From a young person's perspective, the message
is that no-one believes that being locked up will do anything
to change them; that being locked up is strictly for punishment,
not rehabilitation. Any child returning from a sentence of custody
will, in any case, have a period of YOT supervision, either under
the community half of their detention and training order, or on
license.
8. NAMING AND
SHAMING
8.1 The Children's Society remains concerned
about the lack of reporting restrictions when children and young
people are given an ASBO and the removal of the automatic reporting
restrictions (under s.49 of the Children and Young Persons Act
1933) when a young person is convicted and given an Anti-social
Behaviour Order (ASBO) in the youth court brought about by section
86 of the 2003 Act.
8.2 In its recent report to the UK Government
on the implementation of the UNCRC, the UN Committee recommended
that states parties "ensure that the privacy of all children
in conflict with the law is fully protected in line with Article
40(2) of the CRC" (recommendation 62(d)).
8.3 Apart from the human rights breaches,
we would ask the Committee to consider the very acute children
protection concerns that arise from a policy of making publicly
available information about children's identity, photographs and
address. The policy makes it very easy for paedophiles and others
who may want to abuse children to identify and target vulnerable
children who may be very susceptible to grooming.
8.4 Naming and shaming is counterproductive.
In some cases public identification and publicity can glorify
bad behaviour, and act as a badge of honour. The local notoriety,
which it brings often feeds into a young person's sense of satisfaction
about causing trouble. For one young person that we have been
working with the reporting of his ASBO led to an elevation to
cult status in the local community and significantly set back
the work that a youth organisation had been doing him.
8.5 Equally, for those who do want to make
a fresh start, for whom being caught and reprimanded has had an
effect, the impact of negative publicity about them can only prolong
their problems in engaging with their community more positively.
People who may never have even known or met them, will know them
only as a troublemaker, long after their behaviour has changed.
"I had to move out of one area to another
because of the ASBO conditions. The leaflets stated where we had
moved to. This didn't seem fair as the ASBO was given in a different
area and we had moved for a fresh start." (parent of y.p.
on ASBO)
8.6 Many young people have raised with us
the potential for people to mistakenly identify and report children
breaching their ASBO conditions. Equally, photographs issued at
one point in time may quickly go out of date, as young people
grow and change their appearance and fashions. Many young people
also have a real sense of injustice that malicious reports can
be made up or exaggerated, and the breach process does not require
those reports to be tested against a criminal standard of proof,
even though the result is a criminal conviction for breach.
8.7 Overall, children and young people report
to us that naming and shaming is exacerbating tensions between
young people, adults and authorities, as they feel under constant
negative scrutiny from the adults around them, whether or not
they are under an ASBO themselves. This impedes community relations,
and the young person's job prospects and future life chances.
It can also impact on the whole family, including younger siblings.
8.8 Without careful attention it can lead
to over-zealous and malicious "amateur" policing and
surveillance, such as private individuals videoing and photographing
children as they go about their community. In any other circumstance
we would view such behaviour highly suspiciously, and we must
appreciate how intrusive this feels for children. If we do not
show children that we have respect for their privacy, then we
will have great difficulty explaining what privacy means and why
they should both protect themselves and show respect for others'
privacy.
8.9 The Home Office Review of Anti-social
Behaviour Orders[20]
highlighted some of the dangers of reporting stating that "there
were also dangers of over enthusiasm from the local press. One
local paper was so moved by the example of one ASBO they started
a `Shop a Yob' campaign". The Review goes on to say "the
decision to release juveniles" names remains a very contentious
issue, even meriting discussion in the national press'. Reference
to the national press is still relevant three years later as we
are aware of local and national newspapers engaging in such activity.
It is hard to argue that national coverage involves the local
community, who may have been affected by the behaviour, in enforcing
the ASBO.
9. CONCLUSION
We are very concerned about the discrepancies
between the "anti-social behaviour" approach and the
"youth justice system approach" to the problematic and
criminal behaviour of children who often have very similar personal
and family needs. ASBOs in particular, create restrictive conditions
that are usually unsupported by assessment or intervention to
support behaviour change. This contrasts with the approach taken
when children are given final warnings or convicted of offences.
Anti-social behaviour orders are being used as "easy"
alternatives to the criminal justice process, with their lower
standard of proof than that required by criminal courts.
24 September 2004
6 "Although disorder, youth nuisance and anti-social
behaviour were often identified as priority themes in Crime and
Disorder strategies there was a lack of clarity as to what behaviours
were being referred to . . . Any behaviour could be classed as
being anti-social depending on a number of factors including the
context in which it took place, the location, the tolerance levels
of the local community and expectations about the quality of life
in an area"Social Exclusion Unit (2000) National Strategy
for Neighbourhood Renewal-Policy Action Team 8: Anti-social behaviour. Back
7
ODPM (2003) Tackling Anti-social Behaviour in Mixed Tenure Areas,
Housing Research Summary No.178, 2003. Back
8
"There is no single definition of anti-social behaviour
. . . young people are often perceived to be responsible for anti-social
behaviour but they are most at risk of being victims". Back
9
NOP Research Group questioned 702 children aged 10 to 16 face
to face in Great Britain on September 13 2003. Back
10
Press release "Grumpy grown-ups stop children play, reveals
Playday research" http://www.playday.org.uk/pr005.htm Back
11
Concluding Observations of the UN Committee on the Rights of
the Child, United Kingdom, October 2002 Report. Back
12
The JCHR stated: stated that: ". . . the potential intrusion
on private life and liberty is so extensive, and the benefits
in any case likely to be so speculative, that it might be difficult
to establish (either in general or specific cases) that the powers
granted under clause 30 of the Bill will or would only be used
when it was proportionate to pressing social need.". Joint
Committee on Human Rights, Thirteenth Report of the Session 2002-03,
HL Paper 120, HC 766, 17 June 2003. Back
13
Anthony Jennings QC (Matrix Chambers): In the matter of The Anti-Social
Behaviour Bill (28 May 2003). Back
14
The Herald & Post, Thursday 19 August 2004. Back
15
Hansard, House of Lords Official Report, Thursday 23 October
2003, Col.1838. Back
16
ASBOs granted and refused between 1 April 1999 to 31 March 2004,
www.crimereduction.gov.uk/asbos2.htm Back
17
Campbell, S. (2002) A Review of Anti-social Behaviour Orders.
Home Office Research Series 236. London: Home Office. Back
18
Egs of conditions that have been applied to ASBOs on children
and young people that The Children's Society works with. Back
19
http://www.youth-justice-board.gov.uk/YouthJusticeBoard/AboutUs/News/NewsArchive/CustodyRise.htm Back
20
Campbell, S. (2002) A Review of Anti-Social Behaviour Orders.
Home Office Research Study 236 http://www.homeoffice.gov.uk/rds/pdfs2/hors236.pdf Back
| 
