Joint Committee On Human Rights Thirteenth Report

Part 5 of the Bill: ASBOs, curfew orders and child residence orders

42. Clause 36 of the Bill would add housing action trusts to the list of people and bodies who can apply for an anti-social behaviour order under the Crime and Disorder Act 1998,[38] and allow additional parties to be added to proceedings for orders if their allegedly anti-social acts 'are material in relation to the principal proceedings'.[39] After a person has been convicted of an offence, clause 37 would make it possible for the court to make an anti-social behaviour order after hearing any additional evidence put forward by prosecution and defence, which need not be evidence that would have been admissible in the criminal proceedings.[40] Conducting proceedings for such orders following a conviction would be the responsibility of the DPP.[41] In our view, these provisions do not give rise to substantial issues in relation to Convention rights.

43. Clause 38 would allow fixed penalty notices for disorderly behaviour to be issued to people aged 16 and 17 for the first time, and would allow the Secretary of State to vary the age by order. This seems to us to raise no human rights issues. However, clause 39 and Schedule 2 would extend the operation of curfew orders imposed on convicted persons under the age of 16, by removing the 3-month limit to such orders under section 37 of the Powers of Criminal Courts (Sentencing) Act 2000. The period for which people could be required to comply with directions of a supervisor under a supervision order would be extended from 90 days to 180 days. On our initial examination of the Bill, it seemed that these provisions might give rise to questions about the proportionality of the interference with the right to private and family life under ECHR Article 8. We therefore asked the Government what made it think that the new arrangements would be proportionate to a pressing social need so as to be necessary in a democratic society for the purpose of Article 8.2, bearing in mind that a range of other methods of dealing with these problems is already available to the courts.

44. The Government responded with a full explanation of the value of electronic monitoring or 'tagging', and of the success of the schemes in pilot trials with children aged 10-15, coupled with the intensive supervision and surveillance programme administered by the Youth Justice Board. They help to keep offenders, who might otherwise have had to serve a custodial sentence, at home with their families and away from the bad influence of potential offenders on the streets, and they reduce the risk of re-offending. Courts have a discretion over the period for which an order runs, up to what would be a six-month maximum for 10 to 15-year-olds, and the sentencing court must make wide-ranging inquiries, and would have to take account of guidance to be issued on the implementation of the measures, before deciding that it is appropriate to make an order.[42]

45. We have come to the conclusion that these considerations are sufficient to persuade us that the extension to the anti-social behaviour, supervision and curfew orders proposed in clauses 36 to 39 of the Bill would be justifiable under ECHR Article 8.2 as a proportionate response to a pressing social need.

46. A more controversial proposal, in terms of both human rights and general policy (although we are concerned only with its human rights implications), is paragraph 4(5) of Schedule 2 to the Bill. This would insert a new provision (paragraph 5A) in Schedule 6 to the Powers of Criminal Courts (Sentencing) Act 2000, to allow a supervision order to require a child offender (aged 10 or over) to live with a local authority foster parent for a specified period not exceeding 12 months, if:

a)  the offence would be punishable with imprisonment if the offender were 18 or over;

b)  the offence is so serious that a custodial sentence would normally be appropriate in the case of a child aged 12 or over;

c)  the court is satisfied that the defendants behaviour was due to a significant extent to the circumstances in which the defendant was living, and that the imposition of a residence requirement would assist in his or her rehabilitation; and

d)  the court has been notified by the Secretary of State that arrangements are in place to implement the requirement in the area, and the court has consulted the local authority which would be responsible for implementing the requirement.

47. This engages the right to respect for family life (ECHR Article 8). It involves disrupting the family, and interfering with family relationships. It applies to children as young as 10, who could not normally be subjected to a custodial sentence except for a very small number of crimes (notably murder). When we first examined the Bill, we provisionally took the view that a very strong case would need to be made for the necessity of such arrangements before they could be accepted as being proportionate to a legitimate aim so as to be justifiable under Article 8.2. There are limited safeguards in the legislation. In particular, it is not clear how the responsible public authority would perform its duty under Article 8 to ensure that everything possible was done to maintain family relationships and to work towards the reintegration of the family.[43]

48. We therefore asked the Government:

a)  how it expected that the responsible authority to perform its functions under proposed new paragraph 5A of Schedule 6 to the Powers of Criminal Courts (Sentencing) Act 2000; and

b)  why it thought that removing a young child from his or her family for up to a year would be justifiable in terms of Article 8.2.

49. The Government replied[44] that it viewed the fostering requirement as 'a positive and child-centred response to serious and persistent young offenders'. It 'offers a constructive and less damaging alternative to custody. This intervention benefits the young person, the family and the wider community and is justifiable in accordance with Article 8.2 for the prevention of disorder or crime, the protection of health and morals and the protection of the rights and freedoms of others.' The Government's claim that fostering would be imposed only if a young person would otherwise have received a custodial sentence is hard to square with the fact that 10 and 11- year-olds can only receive a custodial sentence for a narrow range of offences (such as murder) so serious that a non-custodial sentence is unlikely to be seriously considered.

50. On the other hand, there appears to be substance in the Government's suggestion that fostering might remove the child from chaotic home life or poor parenting with inadequate supervision where this is a contributory cause of the child's offending. When used in respect of persistent offenders aged 10 or 11, fostering could deal with problems before they become too entrenched. The Government says that the child would receive a stable and caring home life from specially trained foster parents with back-up support, and would undertake structured activities in the daytime to tackle the causes of the offending behaviour. Meanwhile, the Government says that work would be undertaken with the child's parents to improve their parenting skills to prepare for the child's return home. In addition, if the child makes good progress before the end of the period of fostering, an application could be made to the court to revoke the fostering requirement.

51. The compatibility with ECHR Article 8 would depend crucially on the Government being able to make good its promise to provide specially skilled and supported foster carers, and to work with the children and their parents towards reuniting the family. This would require an intensive injection of human and financial resources. There are signs that this might be forthcoming.

52. The Government intends that the power would be used on a trial basis at first, with about 20 places a year taking an average of 26 young people annually, with each foster placement lasting an average of nine months. This is estimated to cost £2m, including payments of £2,000 per week to the foster carers, the cost of providing 24-hour support to foster carers, and the cost of educational and family support and therapeutic intervention.[45] This works out at a cost of about £100,000 a year for each foster place, or an average of £75,000 for each young person who is subject to a fostering requirement. While the Government hopes that savings of about £450,000 (that is £22,500 per foster place, or an average of £28,846.15 per young person) would accrue to the Youth Justice Board by reducing the number of places in secure juvenile custody places it would have to purchase, it would leave a substantial amount of additional money and a large body of personnel to be found if the pilot scheme is ever converted into a full-scale penal option. If the high level of either personnel or money necessary to support highly intensive work with the young people and their families is ever reduced, it would inevitably mean that the scheme could not satisfy the requirements of ECHR Article 8.

53. Having considered all these matters, we are not sufficiently confident that the Government's plans for implementing its proposals in such a way as to justify fostering requirements, and to benefit and reintegrate the child and his or her parents in a family relationship, are sufficiently robust and reliable to ensure that foster care requirements would satisfy the requirements of ECHR Article 8. We draw this to the attention of each House.

38   Cl. 36(2) Back

39   Cl. 36(5) Back

40   Cl. 37(2) Back

41   Cl. 37(6) Back

42   Annex A to the Home Secretary's letter, p 27 Back

43   See e.g. Olsson v. Sweden, Eur. Ct. HR, Series A, No. 130, judgment of 24 March 1988, 11 EHRR 259; Johansen v. Norway, Eur. Ct. HR, RJD 1996-III, No. 13, judgment of 7 August 1996, 23 EHRR 33 Back

44   Annex A to the Home Secretary's letter, p 27 Back

45   Bill 83-EN, para. 159 Back

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