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In its recent report on the use of restraint in secure training centres, the Joint Committee on Human Rights said about the treatment of children in custody:

Two government departments are particularly concerned with young people in trouble: that for children, schools and young people—I forget the precise name of the department, but it is something like that.

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Lord Hunt of Kings Heath: My Lords, I think that the noble Lord has missed out the word “families”.

Lord Thomas of Gresford: My Lords, I am much obliged. That government department deals with young people in trouble, as does the Home Office. In December 2007, a few months ago—

Lord Hunt of Kings Heath: My Lords, in his interesting speech, the noble Lord has missed out my own department, the Ministry of Justice.

Lord Thomas of Gresford: My Lords, these government changes happen with such frequency, not to mention the personnel involved, that it is difficult to keep up.

The Children’s Plan, published in December 2007 by the Department for Children, Schools and Families, acknowledges that the current system is in need of fundamental reform. This is the Government’s own paper. It states that,

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We want a complete change in youth justice policy so that we do not treat children in the same way as we treat adults; that is, by locking them up to prevent offending and reoffending. We want the recommendations in the Children’s Plan to be followed. We submit that the signal given by our amendment is important—that the principal aim of the youth justice system is to promote the welfare of children and in so doing to have particular regard to the need to prevent offending, including reoffending. In other words, we wish to shift the balance and the emphasis from punishment to rehabilitation—to putting children on the correct road.

While we welcome the steps that the Government have taken in their amendment and we are grateful to the Minister for listening, we believe that we have to go further. This is not the end by any means. In due course, I shall move Amendment No. 47 in place of the government amendment.

Baroness Butler-Sloss: My Lords, I congratulate the Government on a considerable move forward in their Amendment No. 36. The amendment of the Liberal Democrats, Amendment No. 47, would be even better; none the less, I recognise the great improvement in Amendment No. 36. I refer to one element of it. Proposed subsection (2)(b) refers to the Children and Young Persons Act 1933 and uses the word “welfare”. It is about time that “welfare” was updated to be relevant to 2008. Section 1(1) of the Children Act 1989 specifies that the welfare of the child is paramount, as the noble Lord, Lord Thomas of Gresford, said, but it is interesting that Section 1(3) also provides a checklist on the way in which “welfare” is to be understood by judges and magistrates in the family courts. I am not suggesting that every item on that checklist would be appropriate for young offenders, but some would be. One of them is, for example,

The Government should, not necessarily in primary legislation—and I appreciate that I have not put down an amendment—but somewhere, provide something similar to the checklist in the Children Act to guide magistrates, in particular, and judges on how they should interpret “welfare”, whether that is done under Amendment No. 36 or Amendment No. 47. We would then know what welfare really means and give it the prominence and significance that it should have. It must not just be a word, but have real meaning. Somewhere that meaning should be elucidated, so that judges and magistrates can use and rely on it when considering sentencing.

Lord Elystan-Morgan: My Lords, I associate myself wholeheartedly with everything said so clearly and so powerfully by the noble and learned Baroness, Lady Butler-Sloss. I suppose that the Children and Young Persons Act 1933, rather than the Children and Young Persons Act 1969 or the Children Act 1989, was selected because what is left of the 1933 Act is essentially criminal statute. The submission of the noble and learned Baroness is extremely powerful. The concept of the welfare of a child is indivisible. There is nothing wrong in taking a term out of what is essentially a civil statute—the 1989 Act. For those reasons, very respectfully, I completely support what has been said.

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Baroness Stern: My Lords, I, too, am grateful to the Minister for tabling his amendment. I, too, feel that it does not go far enough and I am also grateful to the noble and learned Baroness, Lady Butler-Sloss, for her contribution. Her contribution to all our discussions, given her background in the Family Court, has been invaluable and has given us an insight into how far the criminal justice part of dealing with children has moved away from the mainstream.

I want to speak, in particular, to Amendments Nos. 37 and 40 in my name and those of the noble Earl, Lord Onslow, and others, and I am grateful to them for adding their names. The noble Earl, Lord Onslow, and I tabled these amendments as a result of the study of the Bill by the Joint Committee on Human Rights, of which we are both members. In his absence, I shall briefly try to do justice to our argument once more.

The UN Convention on the Rights of the Child, to which we are party, says that in all measures imposed on children, the best interests of the child shall be paramount. The point of stating that in the convention is that children are different from adults. They are vulnerable, are not yet developmentally formed and are growing up, so we protect them. They are not allowed to marry until a certain age, go to war or drink. In its simplest form, that article in the convention applies also to the way in which we deal with those who have broken the law, are deemed to have broken the law or have done damage and harm to others. Nothing whatever anywhere in the convention suggests that a child puts him or herself beyond its terms by having been charged with a criminal offence, and in no country in the world does anyone claim that.

Therefore, the system for dealing with under-18s should be different because it should be shaped by those ideas. One way in which it should be different is by imposing measures that look to solutions to the problem—solutions that aid the development of the child to grow up into a law-abiding adult.

I am very grateful to the Minister for the Answer that he gave me yesterday to a Written Question. I must admit that I was astonished by the Answer. I was astonished, first, by the information in it and then I was astonished—and, indeed, ashamed—that I was not already aware of that information. I asked the Minister how many people under 18 were serving indeterminate sentences for public protection and the age of those people. Noble Lords may, or may not, be as surprised as I was to hear that 48 people under the age of 18 are serving indeterminate sentences for public protection and that, of these, 17 are aged 15.

Since the sentence has been available, of those under 18 sentenced to an indeterminate sentence for public protection, five have had a tariff of one year or less and 56 have had a tariff of one to two years. Therefore, I make the assumption—I hope, rightly—that their offences were not murder, rape and so on or offences that threatened life, as there are other provisions in the law under which they would have been sentenced for such crimes.

As of 31 January this year, not one of those 48 children had been released. That seems to be a very good example of why there must be a system of youth

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justice that puts the welfare of the child as the first priority. If we had such a system, I think that serious questions would be asked about the appropriateness of indeterminate sentences for public protection for 15 year-olds.

I want to end with an example. This morning, I chaired a meeting organised by INQUEST to launch a publication about women who die in prison. One of the speakers was Kirsty Blanksby. Kirsty was one of two sisters who came from a troubled background and caused a lot of trouble when she was a child. She got into the mental health system, went to a therapeutic community and there she was, sitting on the podium in Committee Room 9 this morning, addressing a meeting in the Houses of Parliament—a very fine, articulate young woman. Her sister Petra, in the same situation, got into the justice system. Kirsty is living a normal, full life; Petra is dead. She killed herself in New Hall prison just as she reached the age of 19.

I use that example to make the point again that putting the welfare of the child first is also putting the welfare of society first. Solving Kirsty’s problems was worth it for her and for us. I support the amendments.

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The Lord Bishop of Chester: My Lords, I agree with everything that has been said so far. I want to pick up on what the noble Baroness, Lady Stern, was saying. The figures for youth suicide in this country are an absolute scandal. The number of young people who commit suicide every year is equivalent to the numbers in a secondary school.

I prefer Amendment No. 47 to the earlier amendment as it shifts the balance towards responding to the many problems encountered by young people in our society which derive, one way or another, from a lack of love in childhood. That is the root of the problem, and the chaos in family life these days in our society feeds that. We see that from the news this morning about Shannon in Yorkshire and the family circumstances from which she has come. Also, the prevalence of child pornography in the news this morning illustrates the underlying culture that we face. As a bishop, I visit youth offending institutions and it is often chilling to see the way in which they operate. Young people are regularly sworn at—I could give more details. We need a change of culture in our approach to youth justice. I am grateful to the Minister for the move that he has indicated in his introduction to this government amendment, but I believe that Amendment No. 47 points us in a better direction.

Lord Judd: My Lords, it would be unfortunate if my noble friend were to feel that he was being congratulated only by those on other Benches rather than from his own. I congratulate him very warmly on having introduced the amendment and I qualify my warm congratulations only by saying that the glass of enlightenment still is far from full—it seems slowly, drip by drip, to be filling rather than emptying—as my noble friend and his colleagues come to grips with some of the problems that we have discussed on this amendment and similar amendments.

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I have two observations to make about the text of the amendment. There have been various references to the UN convention, our obligations to children and the importance of recognising that in our legislation. The amendment is significant because it talks not about “children” but about the “offender”. That is immensely significant because it leads on to suggest that we must move towards tailor-made systems that really examine the predicament and situation of the individual child caught up in what has happened and what he has caused to happen. We must see what will enable a child to become a rehabilitated, positive and creatively participating member of society, taking a responsible role in society.

Whenever we talk about welfare we need to expand that to spell out what we really mean because welfare could be a matter of protecting a child. I believe that the convention and any enlightened approach to these matters suggest that we must have a policy which is far more imaginative than simply looking at welfare. We need to look at the rehabilitation of the individual concerned.

I hope that my noble friend will forgive me for making those points, but within the context I thank him for having brought the amendments, because they help us to create a dynamic for moving forward. As we move forward, I wonder whether we shall more frequently look at what is happening north of the border in Scotland. I am impressed that, for 40 years, they have had working rather successfully in Scotland the panel hearing system, which looks not only at the particular individual offence of which the child is accused, but the whole situation of the child, of which the offence is a part, and what will be appropriate for helping to put things right.

It is true that that has so far operated only for children up to 16, but as I understand it, active consideration in Scotland is being given to the possibility of extending it to 18. I hope that, as we all consider the future, we are not too proud south of the border to learn from those who seem to be having some success in these respects north of it.

Lord Ramsbotham: My Lords, I, too, thank the Minister for bringing forward the amendment, but, like other noble Lords, I have some reservations about its wording. I was interested to hear him mention the aim of the youth justice system. As a former soldier, I was brought up to believe that an aim must be absolutely clear and unequivocal, and give clear direction to all those who have to follow it. Unfortunately, the aim here is not clear, because it confuses preventing “offending” with preventing “reoffending”, which are not the same thing.

Given that the Act from which the provision was taken dates from 1998 reminded me of the anticipation with which we awaited the arrival of this Government following the statement of Mr Blair that he was going to be tough on crime and tough on the causes of crime. Appreciating that the causes of crime were in society, we hoped that that would mean a bringing of society into the resolution of the causes and therefore the prevention of crime. Soon after that, the new Government realised that the criminal

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justice system—the police, the courts, prisons and probation—were in a mess; they were not a united system; they represented rather more four warring tribes competing with each other for ever-diminishing resources rather than realising that their efforts, if aggregated, could produce a better solution that was much more geared to protecting the public than if they continued separately. So, very wisely, the Government gave them a uniting aim, which was to protect the public by preventing crime. I have no argument with this sentiment, but the word “prevent” is wrong in this context, because the criminal justice system does not click in until after a crime has been committed. That is not to say that there are not certain activities of the police which are geared towards crime prevention, but the criminal justice system, the investigation of the crime by the police, the sentencing and then the administration of the sentence by the prison and probation services are all about preventing reoffending, which is not the same thing at all. I notice that this aim for the youth justice system was given to it at exactly the same time. All that one has done is cross out the word “criminal justice system” and put “youth justice system” and given it the same aim: preventing reoffending.

At the same time, I was looking at the aim of the Prison Service, which is,

Here my background as a soldier came into play and I realised that there was not one aim in that but three, and you cannot have three aims. Security is put first, which is why security seems to run everything. In fact, if we are talking about preventing reoffending, helping people to live useful and law-abiding lives should come first, with the qualification that they must not be allowed to escape and must be treated with humanity. My noble friend Lady Stern and the noble Lord, Lord Judd, made the point that what is missing from that aim is that it should be in the interests of the child. Saying that the aim of the youth justice system is to prevent offending, which it is not, is missing that the aim of the system is to help young people to live useful and law-abiding lives and to rehabilitate them using methods that are appropriate to them as children. I hoped that, after listening to us, the general spirit of making children count would have been reflected in revised aims and principles for the youth justice system that would be put in the Bill.

Lord Mayhew of Twysden: My Lords, we have just listened to a very profound contribution, and I cannot sensibly add to it. Alone among those who have contributed to the debate, I shall look in a little more detail at the new clause inserted by Amendment No. 47, which has been tabled by the noble Lord, Lord Thomas of Gresford. As I understand it at the moment, I do not share the general view that it would be better than government Amendment No. 36, which I welcome. I do not know how the court, seeking to follow the guidance that it gives, could be expected to understand what it is supposed to do. The new clause states:

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which seems to me to be a syntactical infelicity—

What should the court gain from the word “particular”? Is it intentional that there is no reference to the reform and rehabilitation of offenders, the protection of the public or the making of reparation by offenders to persons affected by their offences? All those are to be found in Clause 9(4). The new clause proposed would be a source of confusion for a court, and I genuinely look forward to hearing what the noble Lord will say about that to dispel my confusion, if he winds up on his proposed new clause.

Baroness Howe of Idlicote: My Lords, I, too, thank the Minister for his well intentioned and well received attempts to meet the concerns expressed by a number of noble Lords. Despite what I heard from the noble and learned Lord, Lord Mayhew, I still feel that the phrasing of Amendment No. 47 better reflects what one would like to see happening than the amendment tabled by the Government. Taking the point made by the noble Lord, Lord Judd, we are still talking about children and young people. The main aim is that they are treated as such, whether we are thinking about prevention, paying back to society or whatever. They come from the most deprived backgrounds, whether they have been subjected to ill treatment or just to inadequate treatment and parenting. It was, above all, the comments made by my noble friend Lady Stern that made one concentrate on this issue.

The very fact that that huge number of children, some as young as 13 or 15, should be serving indeterminate sentences, which may be short in theory but are likely to continue for a considerable time, is horrifying. We also know from reports by the Chief Inspector of Prisons about growing concern about self-harming. In 2004-05, there were approximately 25 incidents per week of children self-harming. That is not sensible; it is not the right way to be dealing with children and young persons, so I hope that we can look at this again.

Baroness Warnock: My Lords, I had not intended to intervene, but I support very strongly what my noble friend Lord Ramsbotham said about the confusion in the statement of aims contained in Amendment No. 36. The more one thinks about it, the more one realises how confused that statement is. I am sure that it could easily be put right, but it is of the greatest importance that we should know exactly the aim of the youth justice system and not confuse those two very different things: offending and reoffending.

Lord Neill of Bladen: My Lords, perhaps I may add just a note to what has been said. I was very moved by the contribution of the noble Baroness, Lady Stern, and the story that she told of the two sisters, and by the reference of the right reverend Prelate to the lack of love. Rehabilitation and help for children should be the dominant features of any measures that we introduce. The degree to which children are affected by the absence of love is dramatic. We must all have seen it in our own lives: a family in which love appears to be absent.

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I turned on the “Today” programme as I drove in today and heard about internet communications between very young children who are putting in the public arena information about how they live, what they look like, and so on. The plea is being made that parents should intervene to protect the children. We have the desperate situation of unloved children in houses and households where there is no room. There is no table at which anyone ever has a meal; and there is never a collective meal. The degree of deprivation is so intense. We ought to be aware of that all the time as we think of the people we are dealing with—these miserable, unfortunate children aged 15, languishing in some prison with an indeterminate sentence. What is their background? What terrible upbringing have they had to lead to that?

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