Children's Rights - Human Rights Joint Committee Contents


Memorandum submitted by the Commission on Families and the Wellbeing of Children

1.  INTRODUCTION TO THE FAMILY COMMISSION

  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 THE FAMILY COMMISSION

  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 rights—the Human Rights Act 1998 and the United Nations Convention on the Rights of the Child 1989.

3.  THE FAMILY COMMISSION'S SUBMISSION TO THE JOINT COMMITTEE ON HUMAN RIGHTS' INQUIRY INTO CHILDREN'S RIGHTS

  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 UK—the 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 OF DOLI INCAPAX

  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.[180] 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 AND CONSISTENT POLICY

  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 THE CHILD WITHIN THE YOUTH JUSTICE SYSTEM

  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 justice.

  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 2006).

  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.  CHILDREN'S RIGHTS AND ANTISOCIAL BEHAVIOUR INITIATIVES AND LEGISLATION

  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 year—rising steeply from just a few shortly after their introduction in April 1999 to over 1,500 by 2005.[181] 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 in 2005[182] 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 behaviour—thereby creating a direct link between behaviour and the exercising of statutory power.

  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).

8.  REFERENCESHM Treasury (2004) Every Child Matters; HMSO.

Hollingsworth, K (2006) "R (W) v Commissioner of Police of the Metropolis and Another—Interpreting 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 Responsibility—Taking 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.

February 2009









180   The average age of criminal responsibility in other European countries is 14-15 years. Back

181   http://www.crimereduction.homeoffice.gov.uk/asbos/asbos2.htm Back

182   R (W) v Commissioner of the Police of the Metropolis and Another (2005) EWHC 1586 (Admin), [2005] 1 WLR 3706. Back


 
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