Memorandum submitted by the Commission
on Families and the Wellbeing of Children
1.1 The Commission on Families and the Wellbeing
of Children (the Commission) was established in April 2004 to
consider the relationship between the state and the family in
providing children with a humane and caring upbringing in the
21st century. It was established by the Family and Parenting Institute
and NCH (previously known as the National Children's Home), with
support from the Joseph Rowntree Foundation.
2. AIMS OF
2.1 The Commission's brief was to seek to
promote the wellbeing of children through addressing some of the
core issues and dilemmas faced by society in managing the relationship
between the state and the family.
2.2 In order to achieve its aims the Commissioners
considered the developing boundaries between the state and the
family, examining what is supportive on the one hand and insufficiently
supportive or detrimental to human rights on the other.
2.3 In undertaking its review of family
policy and in developing its recommendations, the Commission was
guided by a set of values which recognise the scope and limitations
of the state's locus in family life together with society's obligations
to support the care and upbringing of children.
2.4 In determining the dividing line between
family autonomy and legitimate state intervention at a range of
levels and in a variety of forms, and the scope of the state's
obligations to support families, the Commission was guided by
two internationally accepted instruments establishing the dimensions
of human and children's rightsthe Human Rights Act 1998
and the United Nations Convention on the Rights of the Child 1989.
3. THE FAMILY
3.1 This submission will focus on the criminalisation
of children. Firstly, the Commission draws the Inquiry's attention
to a central problem arising from recent developments in juvenile
justice within the UKthe effective lowering of the
age of criminal responsibility to 10. Secondly, the Commission
highlights the problem of dual responsibility for juvenile crime
between the parent and young person. Thirdly, the Commission suggests
that the Inquiry considers the issue of welfare of the child once
in the criminal justice system in relation to taking responsibility
for any crime or behaviour. Finally, the Commission draws the
Inquiry's attention to the lack of acknowledgement of children's
rights in relation to antisocial behaviour initiatives.
4. THE ABOLITION
4.2 The age of criminal responsibility in
England and Wales is 10 despite the recommendations in the Ingleby
Report (1960) and by others that it be raised to 12 or 14 in line
with most Western European societies.
In Scotland it is eight, but in the context of a welfare rather
than a judicial model of youth justice. One argument for retaining
the relatively low age of 10 was that the system protected 10-13
year old children inclusive by the presumption of doli incapax,
a long established principle that children of this age were "incapable
of crime" due to their immaturity, unless proven otherwise.
Unless criminal intent could be established, therefore, offenders
under the age of 14 were subject, broadly speaking, to welfare
disposals rather than criminal prosecution. Doli incapax was
abolished by the Crime and Disorder Act 1998. This was done without
a review of the law relating to children's behaviour, which had
been recommended by the Law Lords in C vs DPP 1995; the Law Lords
had anxieties over the impact of the low age of criminal responsibility
operating without the protection of doli incapax.
5. A BALANCED
5.1 The Commission is of the view that an
effective and credible criminal justice system requires that the
rights and interests of victims, offenders and communities be
held in appropriate equilibrium. This balance is not being met
in current criminal justice policy exemplified by the Crime and
Disorder Act 1998 and the Anti-Social Behaviour Act 2003.
5.2 A central problem arising from recent developments
in juvenile justice is the growing contradiction between the effective
lowering of the age of criminal responsibility to 10, which implies
that children over the age of nine have the same knowledge of
what constitutes crime as a mature adult, and the simultaneous
raising of the presumption of parents' responsibility for their
children's offences. In particular the abolition of doli incapax
and the coercive nature of parenting orders have created, in effect,
a questionable new reality of dual responsibility for juvenile
crime. This inconsistency goes beyond existing forms of parental
liability for the conduct of children, and blurs the crucial distinction
between the duty of care and responsibility for conduct.
5.3 When children commit offences it is
right for them to be accountable for their actions, according
to their age and understanding. Account should be taken of what
is known of the psychological development of children in establishing
the age of criminal responsibility. The Scottish Law Commission's
(2002) recommendation that the age be set at 12, with restrictions
on the prosecution of young people under the age of 16, is reasonable
in this regard.
6. WELFARE OF
6.1 The principle of "responsibility"
in law has two definitions depending on which branch of the judicial
system is in operation. Within family law, young people and children
are viewed as operating at some point on a competency spectrum
that can be ascertained through use of the Gillick test. The viewing
of children and young people as at developing stages of understanding
allows issues of welfare to be at the forefront of any decisions
taken on behalf of the young person and removes the confusion
of having to acknowledge any personal responsibility on the part
of the minor.
6.2 However, within youth justice, the removal
of the presumption of rebuttable doli incapax introduces
the concept of criminal responsibility immediately following a
child's 10th birthday. This has the effect of placing the child
or young person under the full glare of judicial scrutiny and
resultant from the youth justice system's central aim of reducing
reoffending, pushes considerations of welfare to the background.
6.3 The principle aim of the youth justice
system is the prevention of re-offending. Although the paramountcy
of the welfare of the child has been well established in existing
laws, once within the youth justice system the prevention of offending
or re-offending can supplant considerations of welfare. It may
be argued that the prevention of offending or re-offending will
increase the welfare of the child, yet unfortunately it does not
address whether the means employed to stop offending in themselves
improve welfare. There is certainly a benefit to be had from reviewing
the impact on child wellbeing of the enforcement side of youth
6.4 Through focus on responsibility for
crimes committed and the removal of the presumption of doli
incapax 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. This view is
further entrenched by a system that at this point begins to narrowly
conceive the notion of welfare of the child or young person as
prevention of future offending (Hollingsworth 2007a; Phoenix 2006;
and reflected in Judicial Studies Board literature).
6.5 Sections 10 and 11 of the Children Act
2004 place a statutory duty on key agencies to improve the well-being
of children and to safeguard and promote their welfare. Under
the Children Act 2004, well-being is linked to helping children
to achieve the five Every Child Matters outcomes. The Children
Act 2004 also requires each local authority to establish a Local
Safeguarding Children Board (LSCB) to safeguard and promote the
welfare of children.
6.6 In contrast, Sections 17, 37, 38, 39
and 115 of the Crime and Disorder Act 1998; the Criminal Justice
and Court Services Act 2000; and the Criminal Justice Act 2003
state that the primary aim of the youth justice system is to prevent
offending and re-offending. The police, Youth Offending Teams
and probationary services, which also work to these provisions
and under the ethos that the second principle remit is to prevent
offending are amongst the agencies expected to participate in
the LSCBs. Although the two roles are not entirely dichotomous,
there is certainly a tension.
6.7 The introduction of the Crime and Disorder
Act 1998 was an attempt to make the youth justice system more
cohesive. Provisions within this Act were intended to be the beginnings
of the creation of a youth justice system in which those in need
of punishment were punished; but equally a system in which those
with welfare issues would be helped out of a life of criminality.
And yet the youth of young offenders seems to be of little consequence
in the youth justice system that has subsequently been developed
which in practice leaves police, YOTs and magistrates with little
option but to enforce increasingly punitive measures (Phoenix
6.8 The Criminal Justice and Immigration
Act 2008 has recently introduced another tier of changes to youth
justice. It states that prevention of offending and reoffending
is the principal aim when considering a sentence for a child or
young person. Although the court must also have regard to the
welfare of the young offender in accordance with Section 44 of
the Children and Young Person's Act 1933 to ensure that welfare
needs are considered when sentencing, welfare needs are not to
have equal status to, or override, the main aim of preventing
offending. It also reiterates the desire for young people to take
responsibility for their behaviour and actions.
6.9 A prevailing central message from youth
justice reforms has been the reduction of offending through an
increase in the demand that young people should take responsibility
for their offending behaviour. One criticism of the new youth
justice system has been the extended reach, increasing the potential
for young people to be drawn into the criminal justice system.
Both Goldson (2006 and 2007) and Rod Morgan, the former Chair
of the YJB have been critical of what they have perceived as a
net-widening in which increasing numbers of young people and behaviours
have become subject to formal (criminal) youth justice action
(MacDonald and Telford; 2007).
7.1 The over-riding focus of the youth justice
system is a reduction in offending and reoffending by young people.
As such the numbers of young people receiving court sentences
and ASBOs should ultimately be reducing. However, both Home Office
figures and the YJB show that convictions have increased at a
substantial rate since the introduction of various measures aimed
at young people.
7.2 The problems of antisocial behaviour have
been highlighted, especially that perpetrated by young people,
as a problem that affects whole communities. The Crime and Disorder
Act 1998 and the Anti-social Behaviour Act 2003 together form
the bedrock on which the Respect Action Plan was based. However,
they seemingly have at their heart a disregard for the rights
of children and young people, who have never offended and yet
are subject to restrictions against future potential misdemeanours.
7.3 Figures from the Home Office point to
a steady increase in the numbers of Anti Social Behaviour Orders
(ASBOs) issued against young people each yearrising steeply
from just a few shortly after their introduction in April 1999
to over 1,500 by 2005.
Figures from the Youth Justice Board also suggest that offences
involving 10 to 17 year olds that result in a court or pre-court
disposal have risen by 11.4% from 2002-03 to 2005-06 (MacDonald
and Telford; 2007). This is a significant rise. The reasons for
these rises are complex but certainly include changes to sentencing
structures and behaviours deemed to be of a sentencing severity.
Although the Crime and Disorder Act 1998 attempts to introduce
a range of diversionary tactics to remove children and young people
from the criminal justice system, it also introduces a range of
alternative sentences if children are thought to be acting in
an antisocial manner. The use of such measures effectively criminalises
behaviour in respect of children which would not attract criminal
sentences if it were committed by adults.
7.4 Recent legislation has also extended
the age range of the reach of interventions. Section 11 of the
Crime and Disorder Act 1998 allows children under the age of 10
to be subject to child safety orders where they have breached
a child curfew, or acted in an anti-social manner, or committed
an act that would be considered a crime if they were over the
age of 10.
7.5 Curfews were initially introduced in
Section 12(1) of the Criminal Justice Act 1991 as a form of community
sentence for offenders over the age of 16. Section 43(1) of the
Crime Sentences Act 1997 extends curfews to the under 16s. Both
of these provisions were repealed and replaced by Section 37 of
the Powers of Criminal Courts (Sentencing) Act 2000, subsequently
amended by the Anti-social Behaviour Act 2003. Local Curfew Schemes
allow a local authority in consultation with the Home Office to
ban children from being in a public space during certain hours
unless they are accompanied by an adult.
7.6 Original guidance on Child Curfew schemes
under Section 14 of the Crime and Disorder Act 1998 states that
these schemes are not intended to interfere with children going
about legitimate activities even if those activities appear to
breach the curfew. However, in the case of removal of young people
under 16, this is not so. Section 30(6) of the Anti-social Behaviour
Act 2003 gives the police the power to return to their home any
young person under 16 who enters a relevant locality regardless
of the behaviour or actions of any particular child. Thus the
Anti-social Behaviour Act 2003 places limitations on the civil
liberties of young people for no other reason than that of being
under 16 years of age. In addition, to date there has been no
assessment of the efficacy of dispersal orders on their own, although
a study and report by the National Audit Office (2006) suggested
that a tiered approach to tackling antisocial behaviour can be
effective. Nonetheless, the implied interests of the community
are put above any consideration of the infringement of the individual
rights of young people who have yet to commit an offence.
7.7 A judicial review into child curfews
found that the powers of the police under Section 30(6) of the
Anti-social Behaviour Act 2003, to remove children to their homes
during curfew hours were permissive only, meaning that a police
officer could not compel a child to return home against his/her
will (Hollingsworth; 2006). Part IV of the Anti-social Behaviour
Act 2003 provides additional mechanisms for the police to deal
with localised problems; firstly the power to remove children
under 16 years to their homes and secondly, in certain situations,
to disperse groups of people regardless of their age. Both powers
require that the area has already been designated a "relevant
authority". In the case of the latter, in addition there
is a requirement that a uniformed officer must have reasonable
grounds for thinking that the presence of the group has resulted,
or is likely to result, in antisocial behaviourthereby
creating a direct link between behaviour and the exercising of
7.8 The UK's international obligations under
the UN Convention on the Rights of the Child 1989 (UNCRC) dictate
that any antisocial legislation cannot treat all children as though
they are potential sources of antisocial behaviour as that would
fail to treat each child as an autonomous human being. In 2002
the UN Committee recommended that the Government review the use
of ASBOs because it considered that they were incompatible with
the UNCRC. This is because they are "status offences"
and also because they can be imposed without compliance with the
minimum fair trial guarantees in Article 6 of the Convention.
As has already been noted, rising numbers of ASBOs were made against
10 to 17 year olds (Home Office; 2003). At the same time, Hollingsworth
has noted that the Government's increasing emphasis on the responsibilities
of young people is not being matched by better recognition of
their rights, particularly as conferred under the European Convention
on Human Rights (Hollingsworth; 2006).
Treasury (2004) Every Child Matters; HMSO.
Hollingsworth, K (2006) "R (W) v Commissioner
of Police of the Metropolis and AnotherInterpreting child
curfews: a question of rights?" Child and Family Law Quarterly,
Vol 18 Issue 2 June 2006; Jordan Publishing Ltd.
Home Office (2003) Respect and ResponsibilityTaking
a Stand Against Anti-social Behaviour; HMSO.
Home Office (2006) Respect Action Plan; HMSO.
MacDonald, Stuart and Telford, Mark (2007) "The
use of ASBOs against young people in England and Wales: lessons
from Scotland"; Legal Studies, 27, (4).
National Audit Office (2006) Tackling
Anti-Social Behaviour; HC 99 Session 2006-07.
Scottish Law Commission (2002) Report on age of
criminal responsibility; Scottish Law Commission Report No
185, Edingburgh: The Stationery Office.
180 The average age of criminal responsibility in other
European countries is 14-15 years. Back
R (W) v Commissioner of the Police of the Metropolis and Another
(2005) EWHC 1586 (Admin),  1 WLR 3706. Back