Children's Rights - Human Rights Joint Committee Contents


4  Children in the criminal justice system

46.  Article 37 of the UNCRC requires that:

No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age;

No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time;

Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child's best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances;

Every child deprived of his or her liberty shall have the right to prompt access to legal and appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.

47.  In its report on the UK, the UN Committee expressed particular concern at the criminal prosecution of child prostitutes and children without valid immigration documentation. It also noted the application to children of ASBOs which, whilst civil orders, might convert into criminal offences if breached and could lead children into contact with the criminal justice system. It recommended that the UK:

  • raise the age of criminal responsibility;[80]
  • always deal with children in conflict with the law within the juvenile justice system;
  • review the application of the Counter-Terrorism Act to children;
  • adopt appropriate measures to protect the rights and interests of child victims or witnesses of crime at all stages of the criminal justice process; and
  • conduct an independent review of ASBOs, with a view to abolishing their application to children.[81]

48.  Many of these concerns were also reflected in our evidence. We deal with some of these issues in our Report.

Criminalisation of children

49.  Echoing the concerns of the UN Committee, Children England told us that it remained concerned that too many children and young people were becoming caught up in the criminal justice system, which was often ill-suited to their needs.[82] The Standing Committee for Youth Justice suggested that there had been a fall in the proportion of children diverted from court and a tendency towards increased prosecution.[83] The Children's Commissioner for England stated that since 2002, the number of under-18 year olds involved with the criminal justice system had risen by 27%, even though the juvenile crime rate had remained stable.[84] The Children's Society pointed to "net-widening", in other words an increasing number of offences which may be committed by children.[85]

50.  However, in contrast to the submissions of a number of witnesses, the Youth Justice Board told us that between 2005 and 2008 there was a 10% reduction in first time entrants into the youth justice system, as recorded by Youth Offending Teams.[86] The Department for Children, Schools and Families told us that in 2007-08, 10,000 fewer young people entered the criminal justice system in England for the first time compared to the previous year and restated its aim to reduce the number of first-time entrants to the criminal system aged 10-17 by one fifth from current levels by 2020.[87]

51.  Whilst we welcome the Government's commitment to reduce the number of first-time entrants to the juvenile justice system, this conflicts with the continuing expansion of the range of offences which apply to children. For the Government's goal to be achieved, it must be coupled with action across Government, particularly the Home Office, to refrain from creating additional offences which lead to the greater likelihood of children being criminalised. In addition, offences on the statute book which may be committed by children should be reviewed with a view to repealing those that are not necessary, such as those that have never been used or have never been the subject of a prosecution.

52.  The Howard League for Penal Reform suggested that:

The Government response to children's behaviour is primarily punitive and fails to take account of the best interests of the child.[88]

53.  Some witnesses advocated focusing on child welfare rather than preventing offending,[89] adopting a welfare and child-rights approach to youth justice[90] and an increased role for children's services within the youth justice system so that all children receive services on the same basis as children outside the system.[91] The Children's Society called for:

… reform to the youth justice system to put children's welfare concerns at its centre. This should be based on the principle of treating children in trouble with the law as children first and foremost. The majority have experienced/are experiencing chaotic and damaging childhoods that require support by mainstream or specialist services. Addressing these needs rather than simply punishing a child's problematic behaviour is best for the child and for society as a whole.[92]

54.  The Standing Committee for Youth Justice reiterated the contention that children caught up in the criminal justice system frequently had a number of problems which meant that a child-centred approach would be beneficial:

Children's offending is typically but one symptom of multiple problems across the spectrum of their lives … There is substantial evidence that a welfare-led approach which seeks to identify and meet these unmet needs is a much more effective means of preventing re-offending than a punitive one.[93]

55.  We draw attention to the evidence from the Welsh and Scottish Children's Commissioners that there are different approaches to dealing with juveniles in trouble with the law in different parts of the UK. The Welsh Commissioner mentioned the All Wales Youth Offending Strategy, which picks up the welfare model and the principle that "children within the youth justice system should be treated as children first and as offenders second".[94] The Scottish Commissioner told us that the Scottish model can be distinguished from the English system by its welfare-based approach and the use of children's hearings.[95] The Commissioner for England agreed that a lot can be learnt from the Scottish system.[96]

56.  Witnesses also noted the over-representation of particular groups of children and young people within the criminal justice system. For example, looked-after children are over-represented in the criminal justice system and in custody in particular.[97] The Adolescent and Children's Trust pointed to a significant correlation between looked-after children and children who offend (noting that 40% of children in custody have been in care).[98] They suggested a possible explanation, stating that children in care:

… can be accelerated into and through the criminal justice system for behaviour that in other circumstances would be dealt with by the family… Care should be viewed as a buffer against criminalisation, not an accelerant.[99]

The Children's Legal Centre called for "immediate research into the reasons for the over representation of children from looked-after backgrounds in custody".[100]

57.  Other witnesses noted the disproportionate number of young male Gypsies and Travellers[101] and children with autism[102] in the criminal justice system. We are particularly concerned by the high number of children from especially vulnerable and marginalised groups within the criminal justice system. The Government should review and explain why such a disproportionate number of children who are looked-after, Gypsies and Travellers or have autism, are present within the criminal justice system, and why existing strategies appear to be failing. Such children, who are already likely to have experienced significant disadvantage and even discrimination in their early lives, require specific and targeted measures and support, outside of the criminal justice system.

58.  We asked the Minister about one specific example of children being criminalised, namely as children involved in prostitution, a matter on which we have previously reported.[103] We were alarmed that the Children's Minister appeared to be unaware that children involved in prostitution are treated as criminals rather than victims.[104] She said:

I cannot accept that it would ever be okay for a child to be a prostitute … I certainly could not accept that it was the right thing to criminalise the victims of rape … and I would always want to ensure as a children's Minister that we were working to safeguard and protect the child.[105]

59.  We specifically drew the Minister's attention to the possibility of amending the Policing and Crime Bill to comply with the UNCRC recommendation that under-18 year olds involved in prostitution should not be criminalised.[106] Following the evidence session, the Minister provided us with a written response on this point, which repeated the Government's argument for maintaining the status quo, namely that prosecutions are only brought exceptionally, and that the criminal law should be retained to remove people from the streets who have refused the support of social services or voluntary organisations.

60.  We were pleased to hear the Minister's comments in oral evidence that as children's Minister she would try to safeguard and protect children, including those involved in prostitution. However, her subsequent written response, which reiterates the Government's line on why children involved in prostitution should continue to be criminalised, directly contradicts her oral evidence. This, as we have stated in previous Reports, flies in the face of international standards and the strong observations of the UN Committee; and also breaches the principle that victims of crime should not be criminalised.

AGE OF CRIMINAL RESPONSIBILITY

61.  In our previous Report on the UNCRC, we noted that the age of criminal responsibility in the UK was the lowest in the European Union (10 years in England and Wales and 8 years in Scotland),[107] that the UK had abolished the common law principle of doli incapax (the rebuttable presumption that children aged 10-13 years are incapable of criminal intent)[108] and that the UNCRC, in its earlier report on UK compliance with the Convention, had recommended that the UK raise the age of criminal responsibility "considerably".[109] We recommended that the Government review the effects of the low age of criminal responsibility on children and on crime and noted that the criminalisation of young children had to be justified by very convincing evidence. We concluded:

Unless evidence of the effectiveness of the present age of criminal responsibility in reducing crime and disorder can be presented, and can be shown to be convincing, we conclude that to bring it more in line with our European neighbours would meet both the requirements of effective criminal justice and our duty under the UNCRC to uphold children's human rights. We recommend that the age of criminal responsibility be increased to 12 years.[110]

62.  The Scotland Commissioner told us that the Scottish Government proposes to increase the age of criminal responsibility to 12 years in Scotland, but pointed out that she would prefer it to be higher, as this was the minimum acceptable international standard. She also suggested that people might conclude that advocates of raising the minimum age thought that children should have no moral responsibility below that age. However, she argued that this was not the case; the aim was to decide, instead, on the most effective and principled approach to children's behaviour "to turn them around and put them on the right line". [111] The Welsh Commissioner agreed that raising the minimum age might be perceived by the public as being "a very soft act" and suggested that there needed to be a public discussion about how to respond to very young children who get into trouble. This, he suggested, required "political courage to take a stance on something in the face of perhaps a media response and a public response that might not be sympathetic to a move of that nature".[112] Other witnesses to our inquiry also referred with concern to the comparatively low ages of criminal responsibility in the UK.[113]

63.  Earlier this year, the Council of Europe Commissioner for Human Rights, in his Viewpoint on children, distinguished between responsibility and criminalisation of children, saying:

We need to separate the concepts of "responsibility" and "criminalization". It is essential to establish responsibility for conduct which contravenes the law.  Where responsibility is disputed, there has to be a formal process to determine responsibility in a manner which respects the age and the capacity of the child. However, this does not have to be a criminal process nor involve the criminalization of children.[114]

In his Report on the UK, focusing on juvenile justice, he recommended "that the Government considerably increase the age of criminal responsibility to bring it in line with the rest of Europe, where the average age of criminal responsibility is 14 or 15".[115]

64.  Witnesses also expressed concern at the removal of the presumption of doli incapax. The Equality and Human Rights Commission suggested that there should be an independent review of the effect of the abolition of the rebuttable presumption.[116] The Commission on Families and the Wellbeing of Children stated that "we have arrived at a position in which, once within the youth justice system, a child is viewed first and foremost as an offender rather than as a child in trouble".[117]

65.  The Minister confirmed in oral evidence to us that she had no plans to look at the age of criminal responsibility. She noted that it had been set at 10 years old in England and Wales since 1963 and that this level:

… gives us the opportunity to engage in early intervention and ensure that all the opportunities that have been recently set out through the youth crime action plan can come into play at an early age.[118]

When challenged as to how maintaining the current age is consistent with the basic interests of the child, she replied:

Our approach is to ensure that where a child starts to display early signs of offending behaviour there is the opportunity through the many early interventions to support that child, whether it is through either family intervention programmes or referral to other services to encourage them to learn different behaviour… where young people do engage in a serious offence that is something that we recognise we have to take very seriously and address.[119]

66.  We are not persuaded by the Minister's response, which goes against the strong recommendations of the UN Committee and of practice in comparable states. We fail to understand why criminal penalties are necessary to ensure that other services such as family intervention programmes are made available. Whilst we do not underestimate the effects on communities of the offending of some very young children, we do not believe that the UK's current response is consistent with its international obligations to children. Indeed, we consider that resort to the criminal law for very young children can be detrimental to those communities and counter-productive. We endorse the views of witnesses who advocate a welfare-based and child-rights oriented approach. This has the merit not only of being consistent with the UN Convention, but also of bringing about early and positive change in children's lives to prevent them from entering the criminal justice system in the first place.

Children in custody

67.  The UN Committee expressed concern at the high level of child deaths and self-harm in custody and recommended that all available resources be used to protect the right to life. It also recommended that automatic, independent and public reviews of unexpected deaths or serious injuries of children in care or custody be introduced It continued to express concern at the use of physical restraint on children, urging the Government to ensure that restraint is used only as a last resort and exclusively to prevent harm to the child or others and that all methods of physical restraint for disciplinary purposes be abolished. It recommended that the UK:

  • develop a broad range of alternative measures to detention for children in conflict with the law;
  • establish the principle that detention should be used as a measure of last resort and for the shortest period of time as a statutory principle;
  • unless in the child's best interests, ensure that every child in detention is held separately from adults; and
  • provide for a statutory right to education for all children in detention.[120]

MEASURE OF LAST RESORT

68.  Article 37(b) requires that children should only be detained as a last resort and for the shortest appropriate period of time.

69.  In our last Report, we commented with concern on the numbers of children in detention and concluded:

We urge the Government to re-examine, with renewed urgency, sentencing policy and practice (and in particular the use of detention and training orders) and alternatives to custodial sentences, with the specific aim of reducing the number of young people entering custody and with a commitment to implementing Articles 37(b) and 40(4) of the Convention to the fullest extent possible.[121]

70.  In our Report on the Criminal Justice and Immigration Act 2008, we recommended that the Bill be amended to require that a Youth Rehabilitation Order with intensive supervision and surveillance should always be tried before custody, unless the offence is so exceptionally serious that a custodial sentence is necessary to protect the public. Whilst the Government agreed that custody for young people should only be used as a last resort, it considered that adequate and appropriate safeguards already exist to ensure that courts only use custody where it is a necessary and proportionate response to the offence or offending of the young person.[122]

71.  The issue of the number of children in detention has remained a source of concern to children's rights organisations and others. Some witnesses suggested that there was a high number of children in custody generally in the UK, which compared unfavourably with the majority of European countries.[123] The National Children's Bureau stated that "since 1992 there has been a 90 per cent increase in children and young people in custody" and "a declining number placed in secure children's homes on welfare grounds".[124] However, there was some dispute between witnesses as to current trends in detaining children, including between children on remand and those serving custodial sentences. For example, a number of children's organizations told us that the number of children serving custodial sentences has increased.[125] Other witnesses pointed to the high level of children on remand,[126] with the Prison Reform Trust suggesting that "three quarters of under-18 year olds locked up on remand by magistrates' courts are either acquitted or given a community sentence".[127]

72.  However, the Youth Justice Board suggested that:

While the use of custody for under 18s is significantly higher than 10-15 years ago, over the last ten years the numbers have been broadly stable and have not mirrored the sharper rises witnessed in the adult sector. As a proportion of all disposals custody has slightly declined in more recent years".[128]

73.  The Minister suggested that the number of young people in custody has peaked and is coming down. She also pointed out that the option of a custodial sentence should be available as a last resort, in order to balance the needs of the community.[129] The Minister provided further detail in writing to us, stating:

Data provided by the Youth Justice Board indicates that during the last seven years there was a 10 per cent decrease [in the number of young people in custody on remand].[130]

However, she also noted that "the collated data does not indicate how many young people remanded in custody or to secure conditions were acquitted or received a non-custodial sentence".[131]

74.  Unsurprisingly, given the over-representation of some groups of children in the criminal justice system compared to others, witnesses told us that certain of those trends were repeated in custody. For example, children in the care system are over-represented in custody,[132] as are children with mental health or learning difficulties.[133] Additionally, the Children's Commissioner for England noted that the use of custody for girls has risen sharply:

Overall custody has risen by 56 per cent but those for girls increased by 297 per cent.[134] We are locking away more girls than ever before yet 40 per cent of those girls suffered violence at home, 33 per cent had sexual abuse, 71 per cent have some form of psychiatric disorder, more than 89 per cent are engaging in self-harm, 49 per cent are drug dependent and around 50 per cent have literacy levels below the average 11-year old, and 71 per cent have been involved in social care prior to their admission.[135]

75.  As the National Children's Bureau described it in their submission to us, detaining children:

… denies children their liberty and is expensive. It is therefore important that such a step is taken only when necessary, and that the types of locked provision available are fit for purpose in addressing the child's problematic behaviour and the unmet needs that may be causing it.[136]

76.  Witnesses recommended diverting prison resources to community-based initiatives, phasing out prison accommodation for young people,[137] creating a statutory safeguard to make custody a measure of last resort[138] and desisting from legislating to allow for the increased imprisonment of young people.[139]

77.  We would like to see a real reduction in the numbers of children being detained in the UK each year. There is a lack of clarity about the trends in the incidence of child detention, both on remand and sentenced. We are also concerned that some very vulnerable children are significantly more likely to be detained than others. We urge the Government to comply fully with its obligations under the Convention, in particular to ensure that custody is only used as a measure of last resort and to address the reasons for the over-representation of certain groups of children in detention.

RESERVATION TO ARTICLE 37

78.  In our last Report on the UNCRC, we commented on the UK's then reservation to Article 37(c) of the Convention, which reserved to the UK Government the right to accommodate children and adults together in detention. We noted at the time that the main problem was finding suitable accommodation for the increasing numbers of girls being given custodial sentences. On a number of occasions, the Government set and then failed to meet its own deadlines for removing all under-18 year old girls from the prison system. We recommended that:

… the Government reinforce its efforts to ensure there are sufficient suitable places under local authority care to allow the removal of all girls under 17 from prison custody into local authority secure accommodation by the end of 2003, and so enable the reservation relating to Article 37(c) of the Convention to be withdrawn.[140]

79.  Since our Report, the Government has withdrawn its reservation to Article 37.[141] Both the UN Committee and witnesses to our inquiry welcomed the withdrawal of the reservation.[142] We also commend the Government for having finally removed its reservation to Article 37, as we have advocated for many years.

80.   We note that despite the removal of the reservation, there remain ongoing problems and continuing breaches.[143] For example, witnesses told us that:

  • 17 year old girls have been placed on an adult detoxification wing where there were no separate facilities for girls;[144]
  • boys under-18 years of age continue to be held with adult males in prison service custody in Northern Ireland;[145] and
  • female children are not held separately from female adults in Hydebank Wood in Northern Ireland.[146]

81.  The Youth Justice Board told us that removal of the UK's reservation should not be interpreted as meaning that when a person becomes 18 they should automatically be transferred to an adult establishment.[147]

82.  We asked the Minister about the apparent gap between the Government's aspiration behind removal of the reservation "to fulfil the Convention"[148] and practice since the reservation was removed, particularly in Scotland and Northern Ireland. The Minister explained in written evidence that Scotland was currently working on how it could separately accommodate all under-18s in custody, but that currently young people might be held together with adults. As for Northern Ireland, she wrote that:

The Northern Ireland Office has taken steps to ensure that Northern Ireland is fully compliant with Article 37(c). The Criminal Justice Order 2008 allowed for all young women under the age of 18 to be accommodated at Woodland Juvenile Justice Centre which is an under-18 establishment. A small number of 17 year old boys are held at Hydebank Young Offenders Centre which is a split site establishment with separate accommodation provided for under-18s and 18-21 year old men.[149]

83.  We are disappointed to hear of these continuing breaches of Article 37, despite the Government's purported intention fully to comply with the Convention, and urge the Government to do all that is required, as a matter of urgency, to ensure that it and the devolved administrations are able fully to meet the UK's international obligations.

TREATED WITH HUMANITY AND RESPECT

84.  The UNCRC requires that children in custody should be treated with humanity. The state is required to protect children from physical and psychological assault.[150]

85.  The Youth Justice Board, which is responsible for making arrangements for the provision of secure accommodation for children and young people sentenced or remanded by the courts, aims "to ensure a secure, healthy, safe and supportive place for children and young people is provided however short or long their period in custody might be".[151]

Assaults, injuries, control and restraint and segregation

86.  In our earlier Report on the UNCRC, we concluded that:

The level of physical assault and the degree of physical restraint experienced by children in detention in our view still represent unacceptable contraventions of UNCRC Articles 3, 6, 19 and 37. These statistics do not provide reassurance that the Prison Service is implementing fully its responsibilities to respect the rights of children in custody.[152]

87.  A recent report by the Howard League for Penal Reform, which drew together the findings of inspections of 15 jails holding children, concluded that there were "dire conditions" across the system, including unacceptable and forcible use of strip searching, denial of toilet breaks on journeys to and from court, fear of bullying and assault, physical restraint leading in some cases to fractures, staff not vetted by the Criminal Records Bureau, infrequent access to shower facilities, and children being held in solitary confinement.[153] Specific issues were raised with us by the Law Society of Scotland about the day to day treatment of children in secure accommodation including strip searching without reasonable suspicion, children being forced to conduct all telephone calls in the presence of staff, access to medical practitioners, access to a complaints system, access to fresh air and physical activity, and effective care for the mental health of children. Although the Society commends the Scottish Government for stating that no child is to be held in adult prison accommodation, it suggests that this should be extended to cover the transportation of children and young people.[154]

88.  In our Report focusing on the use of restraint on children and young people, we concluded that it was contrary to the UK's human rights obligations for restraint to be used in order to maintain "good order and discipline". The statutory instrument which sought to enable restraint to be used for this purpose, which the Government claimed was necessary in order to clarify the law, has now been quashed by the courts.[155] Before this, restraint was used to maintain good order and discipline 16 times between April and September 2008.[156] Following the concerns expressed about the use of restraint, the Government established an independent review. Its report and the Government's response were published in December 2008.[157] The review made over 50 recommendations, most of which have been adopted, including discontinuing use of the "nose distraction" technique.[158] The review concluded, however, that "a degree of pain compliance may be necessary in exceptional circumstances" but recognised that this would be "irreconcilable" with the UNCRC and would be unpopular with the Children's Commissioners, our Committee and others.[159]

89.  The UN Committee concluded that restraint should be used against children "only as a last resort and exclusively to prevent harm to the child or others" and called for "all methods of physical restraint for disciplinary purposes to be abolished".[160] The Council of Europe Commissioner for Human Rights, reporting on the UK urged "the immediate discontinuation of all methods of restraint that aim to inflict deliberate pain on children (including physical restraints, forcible strip-searching and solitary confinement)".[161]

90.  A number of witnesses expressed concern at the continuing use of restraint in Secure Training Centres (STCs) and the continuing use of pain compliance techniques,[162] stating that they are likely to put children in danger and could result in serious injury or death.[163] Research by the Howard League for Penal Reform found that, from October 2006 to June 2008, restraint was used 6,001 times on children in prison, 4,380 times on children in STCs, and 3,695 times on children in local authority secure children's homes. Restraint is used disproportionately in STCs and 44% of all injuries caused by restraint occur in STCs. Girls comprise just 7% of children in custody but account for 20% of restraint incidents.[164] Witnesses also expressed disappointment at the Government's response to the independent review,[165] particularly at the fact that the independent review had not led to pain distraction techniques being removed completely.[166]

91.  Witnesses made a number of recommendations including ending the use of pain restraint or distraction techniques, introducing clear and consistent minimum standards, guidance and training across the secure estate,[167] providing independent advocates at debriefs of young person following restraint[168] and six monthly reports to Parliament on restraint incidents broken down by purpose and ethnic origin of the children concerned.[169]

92.  The Youth Justice Board welcomed the independent review and told us that it was committed to acting on the review's recommendations, including by updating its Code of Practice, supporting establishments to learn from incidents of restraint, developing a holistic approach to behaviour management, and investing in staff training in the use of behaviour management techniques.[170]

93.  The National Children's Bureau argued that "it is difficult to ensure that any monitoring arrangements are sufficiently rigorous to identify situations where restraint or specific techniques have been used unnecessarily".[171] The Minister accepted that there may not be sufficiently comprehensive record keeping and that, in view of this, the number of restraint incidents could be higher than those recorded.[172] She also suggested that the high number of incidents recorded against girls could be explained by the need to protect girls from self-harm.[173] She responded to our questioning on whether she agreed with the independent review of the use of restraint in STCs that the use of pain compliance was "irreconcilable" with the UNCRC in writing stating:

The Government does not agree that the use of pain-compliant techniques in extreme circumstances is contrary to the UN Convention on the Rights of the Child … The co-chairs of the independent Review of Restraint voiced an opinion to that effect, as an incidental comment … The co-chairs had not, as far as we are aware, taken legal advice on this point. The Government's own view is that the co-chairs' recommendation is compatible with the provisions of the Convention.[174]

94.  We reiterate our strong concerns that pain compliance is still used as a tactic against young people in detention, and used disproportionately against vulnerable girls. We are particularly concerned that this remains the case, even though the independent review recognised that the use of pain compliance techniques would be irreconcilable with the UN Convention. We find this situation to be alarming and to go against the Government's espoused commitment to the best interests of the child. The Minister failed to persuade us that such techniques are necessary or consistent with the Convention. We reiterate our previous conclusions that techniques which rely on the use of pain are incompatible with the UNCRC.

THE RIGHT TO EDUCATION

95.  In its 2008 report on the UK, the UN Committee again recommended that the UK "provide for a statutory right to education for all children deprived of their liberty".[175] In our last Report on children's rights, we recommended that, as a matter of urgency, the Government bring forward legislative proposals to provide children in custody with a statutory right to education and access to special needs provision equal to that enjoyed by all other children.[176]

96.  The Children's Legal Centre told us that "children in custody do not have a statutory right to education. Many children in custody are not educated under the National Curriculum and do not receive education that is full-time. Also, support for children in custody with Special Educational Needs is severely lacking".[177]

97.  The Minister told us that the Apprenticeships, Skills, Children and Learning Bill, aims "to align education, as far as practicable, with the mainstream sector, including bringing young people in custody under the primary legislative regime",[178] which would mean that local authorities will have responsibility for providing education to young people in detention[179] and that local authorities will receive additional funding in order to exercise this new duty.[180] The Youth Justice Board, referring to the Bill, expressed support for the transfer of responsibility for education provision in youth custody to local authorities, stating "we particularly support giving children in custody clear legal entitlements to education and training in custody".[181]

98.  Under the Apprenticeships Bill, local education authorities (LEAs) with young offender accommodation in their area (host authorities) will be required to ensure that enough suitable education and training is provided to meet the reasonable needs of the children and young people who are subject to youth detention in their area. Young offenders are currently excluded from the duties and powers given to LEAs under the Education Acts. The Bill will also change this position so that detained young offenders are subject to the Education Acts. The aim is that their education, so far as is practicable, matches that of children and young people in the mainstream education system. The Bill also imposes responsibilities on the LEA where a detained young person is ordinarily resident (home authorities) to monitor the education and training of a detained child or young person from their area and to take such steps as they consider appropriate to promote that person's fulfilment of his or her learning potential, both while they are in custody and on their release.[182]

99.  In our scrutiny Report on the Bill, we welcomed the provisions in the Bill concerning education for detained young offenders as positively enhancing human rights.[183] However, we were concerned about the extent to which the Bill as introduced ensured equal access to special needs provision for children in detention.[184] We were reassured by the Government's subsequent amendments to the Bill concerning the special educational needs of detained children and young people. These amount to a significant strengthening of the legal framework to address the special educational needs of this group of children and young people amongst whom such needs are particularly prevalent.[185] We are pleased to note the Government's positive proposals for improving the education of detained children and young people, including those with special educational needs, which are consistent with the UNCRC.

Anti-social behaviour orders

100.  Many witnesses told us of their concern at the use of ASBOs on children and young people. Liberty described them as a "mix [of] criminal and civil law, [which] set people up to breach them, are increasingly counterproductive and used as a panacea for all ills"[186] and as a "fast track to criminality".[187] The Wales UNCRC Monitoring Group and the Standing Committee for Youth Justice suggested that children and young people are more likely to be harmed by ASBOs than to receive any benefits from their imposition.[188] Some witnesses suspected that the rise in the number of criminal convictions of children has resulted in part from the breach of anti-social behaviour measures.[189] The Equality and Human Rights Commission argued that naming and shaming children prosecuted for breach of an ASBO is inconsistent with the principles of the child's best interests, welfare and rehabilitation.[190] Friends, Families and Travellers said that ASBOs are used disproportionately on Gypsies and Travellers.[191]

101.  The Youth Justice Board advocate a tiered approach to responding to anti-social behaviour by children.[192] Liberty conceded that there may be circumstances when an ASBO or non-prosecution alternatives might be effective, such as where they are used in a targeted way as a "last chance" to avoid a criminal record.[193]

102.  The Scottish Children's Commissioner told us that the position in Scotland is different to the rest of the UK as Scottish local authorities have not made use of the ASBO legislation to the same extent. She suggested that this was:

… perhaps because we have a tradition of having a more welfare-based approach to this sort of issue, the anti-social behaviour agenda and the fact that it links into the criminal side does not fit in with the Scottish tradition.[194]

103.  We asked the Minister whether she considered that there were lessons to be learnt from the Scottish system. She agreed, but suggested that the juvenile justice system in England has "been developed and has many more tools within it which are designed to prevent children and young people being taken into custody and being criminalised".[195]

104.  In its report, the UN Committee expressed concern at the restrictions imposed by ASBOs on children's freedom of movement and peaceful assembly and recommended that the UK reconsider their use.[196] The Committee also noted the following concerns:

  • the ease of issuing such orders, the broad range of prohibited behaviour and the fact that the breach of an order is a criminal offence with potentially serious consequences;
  • that ASBOs, instead of being a measure in the best interests of children, may in practice contribute to their entry into contact with the criminal justice system; and
  • that most children subject to them are from disadvantaged backgrounds.[197]

It recommended that the UK conduct an independent review of ASBOs, with a view to abolishing their application to children.[198]

105.  Anti-social behaviour is an issue which rightly causes widespread concern within the UK. We do not underestimate the extent to which anti-social behaviour, by children or adults, can fundamentally blight the lives of individuals and communities. We commend the Government's commitment to tackling this issue. Indeed, human rights law may require it where the effect of the anti-social behaviour is to interfere with the rights of others to respect for their home or not to be discriminated against. We question, however, the degree to which ASBOs hasten children's entry into the criminal justice system, before other strategies have been tried.



80   See General Comment No. 10. Back

81   UNCRC's Concluding Observations on the UK, op. cit., para. 80.  Back

82   Ev 48 Back

83   Ev 176 Back

84   Ev 28 Back

85   Ev 68 Back

86   Ev 203 Back

87   Ev 73 Back

88   Ev 99 Back

89   Ev 69 Back

90   Ev 139 Back

91   Ev 203 Back

92   Ev 68 Back

93   Ev 177 Back

94   Q 10 Back

95   Qq 7-10 Back

96   Q 9 Back

97   Ev 53 Back

98   Ev 179, although also pointing out that over 90% of children in care will never have a criminal conviction Back

99   Ev 178 Back

100   Ev 52 Back

101   Ev 198 Back

102   Ev 184 Back

103   Tenth Report of Session 2008-09, Legislative Scrutiny: Policing and Crime Bill, HL Paper 68, HC 395 at paras 1.62-1.66. Back

104   Q 42 Back

105   Q 47 Back

106   As we recommended in our Tenth Report of Session 2008-09, Legislative Scrutiny: Policing and Crime Bill, HL Paper 68, HC 395 at paras 1.62-1.66. Back

107   The Council of Europe Commissioner on Human Rights remarked on the UK's low age of criminal responsibility in his viewpoint "Children should not be treated as criminals", 2 February 2009. Back

108   Crime and Disorder Act 1998, section 34. Back

109   See note 5 above, para. 37. Back

110   See note 5 above, para. 38. Back

111   Q 11 Back

112   Q 12 Back

113   Ev 52, 68, 69, 84, 99, 174, 179, 191 Back

114   Council of Europe Commissioner on Human Rights, Viewpoint "Children should not be treated as criminals", 2 February 2009. Back

115   Memorandum by Thomas Hammarberg, Commissioner for Human Rights of the Council of Europe, following his visits to the United Kingdom (5-8 February and 31 March-2 April 2008), Rights of the child with focus on juvenile justice, CommDH(2008)27, Strasbourg, 17 October 2008. Back

116   Ev 95 Back

117   Ev 70 Back

118   Q 48 Back

119   Q 49 Back

120   UNCRC's Concluding Observations on the UK, op. cit., p. 20. Back

121   See note 5 above, para. 41. Back

122   Fifth Report of Session 2008-09, Legislative Scrutiny: Criminal Justice and Immigration Bill, HL Paper 37, HC 269, paras 1.11-1.117. Back

123   Ev 64, 152 Back

124   Ev 129 Back

125   Ev 51, 64, 123, 139 Back

126   Ev 50, 64, 152, 191 Back

127   Ev 152 Back

128   Ev 202 Back

129   Q 50 Back

130   Ev 24 Back

131   Ev 24 Back

132   Ev 130 Back

133   Ev 130 Back

134   Between 1992 and 2006. See NACRO and CfBT Education Trust, Review of provision for girls in custody to reduce reoffending, February 2009, p. 5. Back

135   Q 14 Back

136   Ev 129 Back

137   Ev 50, 59 Back

138   Ev 51, 59, 120, 175, 202 Back

139   Ev 120 Back

140   See note 5 above, para. 62. Back

141   Press Notice Department for Children, Schools and Families, UK lifts reservations on the UN Convention on the Rights of the Child, 22 September 2008. Back

142   Ev 49, 59, 65 Back

143   Ev 59, 176 Back

144   Ev 99 Back

145   Ev 50; Q 13 Back

146   Q 13; Ev 169 Back

147   Ev 202 Back

148   Q 65 Back

149   Ev 24 Back

150   Article 40 UNCRC. Back

151   Ev 201 Back

152   See note 5 above, para. 52. Back

153   Ev 98 Back

154   Ev 115 Back

155   R (C) v Secretary of State for Justice [2008] EWCA Civ 882. Back

156   Papers deposited in House of Commons library; Q 71 Back

157   Written Ministerial Statement, 15 December 2008; Department for Children , Schools and Families and Ministry of Justice, Government Response to the Review of the Use of Restraint in Juvenile Secure Settings, Cm 7501; Q 71 Back

158   Q 71 Back

159   Smallridge, P. and Williamson, A., Independent Review of Restraint in Juvenile Secure Settings, 15 December 2008, pp 7-8. Back

160   UNCRC's Concluding Observations on the UK, op. cit., para. 39. Back

161   Memorandum by Thomas Hammarberg, Commissioner for Human Rights of the Council of Europe, following his visits to the United Kingdom (5-8 February and 31 March-2 April 2008), Rights of the child with focus on juvenile justice, CommDH(2008)27, Strasbourg, 17 October 2008. Back

162   Ev 59, 98, 120, 129, 139, 175, 191 Back

163   Ev 98 Back

164   Ev 98; Q 14 Back

165   Ev 65 Back

166   Q 14 Back

167   Ev 140 Back

168   Ev 186-187 Back

169   Ev 93 Back

170   Ev 202 Back

171   Ev 131 Back

172   Qq 83 & 84 Back

173   Q 85 Back

174   Q 69; Ev 24 Back

175   UNCRC's Concluding Observations on the UK, op. cit., para. 48. Back

176   See note 5 above, para. 59. Back

177   Ev 54 Back

178   Q 62; Ev 24 Back

179   Q 58 Back

180   Q 62; Ev 24 Back

181   Ev 201 Back

182   Fourteenth Report of Session 2008-09, Legislative Scrutiny: Welfare Reform Bill; Apprenticeships, Skills, Children and Learning Bill; Health Bill, HL Paper 78, HC 414. Back

183   Ibid., para. 2.14. Back

184   Ibid., para. 2.15. Back

185   Ibid., para. 2.22. Back

186   Ev 123 Back

187   Ev 123 Back

188   Ev 177, 191 Back

189   Ev 70, 178 Back

190   Ev 95 Back

191   Ev 97 Back

192   Ev 203 Back

193   Ev 123 Back

194   Q 7 Back

195   Q 40 Back

196   UNCRC's Concluding Observations on the UK, op. cit., para. 35. Back

197   UNCRC's Concluding Observations on the UK, op. cit., para. 79. Back

198   Ibid., para. 80; Ev 52 Back


 
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