House of Lords - Explanatory Note
Anti-Social Behaviour Bill - continued          House of Lords

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     Clause 19: Parenting contracts in cases of exclusion from school or truancy

52.     This clause sets out provisions for schools and local authorities to enter into Parenting Contracts. Local education authorities (LEAs) and schools will not be required to use parenting contracts and parents will not be required to sign them. For parents, signing a contract will be voluntary.

53.     Subsections (1) and (2) explain the circumstances in which a school-related parenting contract can be made. They are where a pupil has:

  • been excluded from school for a fixed period or permanently; or

  • failed to attend regularly at the school at which he is registered.

54.     Subsection (3) enables local education authorities and schools to make such contracts with parents. Subsection (4) defines a parenting contract as a document containing (a) a statement by the parent that he agrees to comply with the requirements laid down by the contract for the specified period; and (b) a statement by the local education authority or school governing body that they will provide or arrange support to the parent to help them comply with the requirements. Subsection (5) provides for the requirements to include attending counselling or guidance sessions. Subsection (6) defines the purpose of the requirements as improving the pupil's behaviour and/or securing his regular attendance at school. Subsection (8) means that parenting contracts cannot result in certain types of legal action by either party - these are actions for breach of contract and for civil damages.

55.     This clause complements clause 24, which enables Youth Offending Teams to arrange parenting contracts for parents of children who have engaged or are likely to engage in criminal conduct or anti-social behaviour.

     Clause 20: Parenting orders in cases of exclusion from school

56.     Existing legislation provides for parenting orders for parents convicted of school attendance offences. This clause complements that provision by enabling LEAs to apply to magistrates' courts for parenting orders for parents of children who have been excluded from school.

57.     Subsection (1) defines the circumstances in which parenting orders in cases of exclusion from school may be made. These are where a pupil has been excluded from school for a fixed term or permanently and where conditions prescribed by regulations made the Secretary of State for Education and Skills for England or the National Assembly for Wales are met.

     58.     Subsection (2) and Subsection (3) enables local education authorities (LEAs) to apply for parenting orders in such circumstances and magistrates' courts to make them. Subsection (4) defines a parenting order as an order that requires the parent to comply with the requirements specified in the order for a period of up to one year, and with one exception, set out in subsection (5), attend counselling or guidance programme specified by the LEA or school representative overseeing the order (the responsible officer) for up to three months. Subsection (5) makes the requirement to attend counselling or guidance programme an optional part of an order made for a parent who has already been subject to a parenting order. Subsections (6) to (8) state that the counselling or guidance programme may include a residential component when the court considers that this is likely to be more effective than a non-residential course and where any interference with family life is proportionate.

59.     An LEA may apply for a parenting order as a first response or it may make an application following a parent's refusal to sign or breach of a parenting contract. This clause complements clause 26, which enables Youth Offending Teams to apply for parenting orders for parents of children who have engaged or are likely to engage in criminal conduct.

     Clause 21: Parenting orders: supplemental

60.     This clause relates to the process of making a parenting order under the previous clause. When a court receives an application for a parenting order. Subsection (1) prescribes some of the things a court must take into account in deciding whether to make a parenting order; these include any previous refusal by the parent to sign a parenting contract, or any failure to comply with a contract which they have signed. Subsection (2) requires the court to obtain and consider information about a pupil's family circumstances and the effect on an order on those circumstances before making an order.

61.     Subsection (3) applies section 9(3) to (7) of the Crime and Disorder Act 1998 (the Act that established parenting orders) to these parenting orders. These provisions:

  • require the court to explain to the parent the effect of the order and the consequences of breaching it;

  • specify that, as far as practical, the requirements in the order and directions given under it should not conflict with a parent's religious beliefs or interfere with a parent's work or education;

  • enable the court to discharge or vary the order; and

  • make parents convicted of failing to comply with requirements in or directions given under an order liable to a fine.

62.     Subsection (4) enables regulations to be made by the Secretary of State for Education and Skills for England and the National Assembly for Wales to make provision as to how the costs associated with the requirements of a parenting order (including counselling or guidance sessions) should be met. Subsection (5) allows the Secretary of State for Education and Skills for England and the National Assembly for Wales to issue guidance to which local education authorities and responsible officers would have to take into account in deciding whether to apply for a parenting order and what counselling or guidance sessions should be specified.

     Clause 22: Parenting orders: appeals

63.     Subsection (1) provides that an appeal against a school exclusion-related parenting order is to the Crown Court. Subsection (2) applies provisions of the Crime and Disorder Act 1998 to such appeals. These provisions:

    a.     enable the Crown Court to make any orders needed to give effect to its determination of the appeal; and

    b.     require any order made by the Crown Court (other than an order for re-hearing by the magistrates' court) to be treated as an order by the magistrates' court from which the appeal was brought.

     Clause 23: Penalty notices for parents in cases of truancy

64.     Parents of a registered pupil whose child fails to attend school regularly are guilty of an offence. At present prosecution is the only available sanction. Fixed penalty notices will provide an alternative. This clause enables authorised local education authority and school staff and the police to issue such notices, although there is no requirement for them to do so.

65.     Section 444 of the Education Act 1996 provides that a parent commits an offence if his or her compulsory school age child who is a registered pupil fails to attend school regularly. Subsection (1) of this clause adds two new sections (444A and 444B) after section 444.

66.     New section 444A(1) enables an authorised officer to issue a penalty notice where he believes that a parent has committed an offence under section 444 and that the pupil in question is registered at a relevant school. New section 444A(2) specifies that a penalty notice offers the parent the opportunity of discharging any liability to conviction for the offence by paying a penalty in accordance with the notice (the notice will specify the amount to be paid and deadlines for payment). New sections 444A(3) and 444A(4) prevents the parent from being prosecuted for the particular offence for which the notice was issued until after the final deadline for payment has passed and from being convicted of that offence if he pays a penalty in accordance with the notice. New section 444A(5) provides for penalties to be paid to local education authorities. New section 444A(6) enables local authorities to use revenue for purposes specified in regulations made under section 444B. Local authorities will be able to use such revenue to pay for the administration and enforcement of penalty notices.

67.     New section 444B(1) enables the Secretary of State to make regulations governing the form and content of penalty notices, the monetary value of penalties, how the local authority to which a penalty is payable will be decided, methods by which penalties may be paid, records to be kept and the types of staff whom local education authorities or headteachers may authorise to issue notices. The regulations will also govern the circumstances in which penalty notices may be issued, the withdrawal of penalty notices in prescribed circumstances and preventing or stopping prosecution for the particular offence for which the notice was issued, the issuing certificates confirming payment of the penalty, the action to be taken if a penalty is not paid and codes of conduct relating to penalty notices.

68.     The Department for Education and Skills will consult local authorities, headteachers and the police about implementation before determining these details. Section 444B(2) allows the regulations provide for different penalty levels for different circumstances and payment periods. Among other things, this makes lower penalties for early payment possible. Section 444B(3) requires local education authorities, headteachers and all authorised officers to have regard to guidance on penalty notices published by the Secretary of State for Education and Skills.

69.     Subsection (2) amends section 572 of the Education Act 1996 (which deals with the service of notices) to make it clear that a penalty notice may be handed to a parent as well as delivered to his home.

70.     Subsections (3) to (8) amend Schedules 4 and 5 of the Police Reform Act 2002 to enable community support officers and accredited persons to issue penalty notices for truancy. They will be able to issue fixed penalty notices to parents in their police area regardless of where the child is at school. Subsections (9) and (10) allow the National Assembly for Wales to make an order applying these provisions to Wales. If such an order is made regulations for Wales will be made and guidance issued by the National Assembly.

Criminal conduct

     Clause 25: Parenting contracts in respect of criminal conduct and anti-social behaviour

71.     This Clause makes provision for parenting contracts to be made by Youth Offending Teams.

72.     Subsection 1(2) sets out the circumstances for a parenting contract being made. Parenting contracts are designed to provide support for parents when their children are beginning to display anti-social or criminal behaviour. This might include:

  • A child who is referred to the Youth Offending Team in connection with a final warning;

  • A child under 10 has committed an act, which if he had been older, would have constituted an offence.

  • A child referred to the Youth Offending Team for an offence.

  • A child identified as being at risk of offending by a Youth Inclusion Support Panel or Identification, Referral or Tracking scheme.

     73.     Subsection 1(5) describes the purpose of the parenting contract to prevent the young person from engaging in criminal conduct. Evidence suggests that early intervention, particularly family based interventions, are more effective at preventing offending.

74.     Subsection 1(7) sets out that there would be no penalty for the breach of the contract as it is a voluntary agreement between the parent and the Youth Offending Team. However, the Youth Offending Team could use their experience of the parents' engagement during the contract process in any future recommendations for parenting orders.

75.     This clause complements clause 19 which enables Local Education Authorities and school staff to arrange parenting contracts for parents of children who have been excluded from school for a fixed period or have failed to attend the school at which he is registered regularly.

Clauses 26 - 29: Parenting orders in respect of criminal conduct and anti-social behaviour

76.     Clauses 26 - 29 make provision to extend the circumstances for parenting orders in respect of criminal conduct or anti-social behaviour, made under sections 8 to 10 of the Crime and Disorder Act 1998. Subsection (3) of clause 26 outlines the circumstances under which the youth offending team can apply to the court for a parenting order. Subsection (4) sets out what the requirements of the parenting order will be.

77.     Subsection (5) of clause 26 mirrors a provision in section 9 (5) of the Crime and Disorder Act 1998 that sets out the circumstances in which a parent is not subject to a counselling and guidance programme. This is only when a parent has already been subject to a parenting order. However, if a parent has had a parenting contract that included a guidance and counselling programme clause 26(4)(b) will still apply as their attendance at the programme may be improved by being subject to an order. Subsection (6) provides for a residential component to the programme where the conditions set out in subsections (7) and (8) are met.

78.     Subsection (4) of clause 27 applies provisions of the Crime and Disorder Act 1998 (the Act that established parenting orders) to these parenting orders. These provisions:

  • require the court to explain to the parent the effect of the order and the consequences of breaching it;

  • specify that, as far as practical, the requirements in the order and directions given under it should not conflict with a parent's religious beliefs or interfere with a parent's work or education;

  • enable the court to discharge or vary the order; and

  • make parents convicted of failing to comply with requirements in or directions given under an order liable to a fine.

79.     Subsection (2) of clause 28 sets out the mechanisms for appeals against a parenting order using the same procedures as set out in section 10 of the Crime and Disorder Act. This specifies the ability of the appeal court (High Court or Crown Court) to make orders to give effect to their judgement on an appeal.

80.     Clause 29 sets out that "child" and "young person" have the same meaning as in the 1998 Crime and Disorder Act. A "child" is a person under the age of 14. A "young person" is a person who has attained the age of 14 and is under the age of 18. A "Youth Offending Team" has the same definition as in the Crime and Disorder Act 1998. The Crime and Disorder Act sets out that it is the duty of each local authority to establish for their area one or more youth offending teams. This will include at least one of the following:

  • a probation officer;

  • a social worker of a local authority social services department;

  • a police officer;

  • a person nominated by a health authority any part of whose area lies within the local authority's area;

  • a person nominated by the chief education officer appointed by the local authority under section 532 of the Education Act 1996.

81.     Clause 29 also provides that the definition of "youth justice services" in section 38(4) of the Crime and Disorder Act will be amended to include youth offending teams performing functions relating to parenting contracts and orders under clauses 24-26.

PART 4 : DISPERSAL OF GROUPS ETC.

Clause 30: Dispersal of groups and removal of person under 16 to their place of residence

82.     This clause contains new police powers to disperse groups of 2 or more and return young people under 16 who are unsupervised in public places after 9pm to their homes.

83.     These new powers will only be available where an authorisation has been made by an officer of at least the rank of superintendent regarding a designated area. Subsection (1) sets out the conditions which need to exist before this authorisation can be made. Before giving an authorisation, the officer must be satisfied that significant and persistent anti-social behaviour has occurred in the locality and that intimidation, harassment, alarm or distress has been caused to members of the public by the presence or behaviour of groups in that locality. Subsection (2) provides for an authorisation to be given for a period which does not exceed 6 months.

84.     When an authorisation has been made regarding a specific area subsection (3) sets out the circumstances where a constable in uniform can give the directions set out in subsection (4). Subsection (5) provides exemptions for lawful industrial disputes and public processions. Subsection (6) allows the police to return young people under 16 who are unsupervised in public places in areas covered by an authorisation after 9pm to their homes.

Clause 31: Authorisations: supplemental

85.     This clause sets out the process by which an authorisation can be made to designate an area for the purposes of the powers outlined in clause 29. Subsection (1) sets out that the authorisation must be in writing, signed and specify the locality, the period of the authorisation and the grounds for giving it. Subsection (2) ensures that the local authority is consulted before any authorisation is given by the relevant officer. Subsection (3) details the publicity arrangements for the authorisation and subsection (5) ensures that it is published before the beginning of the authorisation period. Subsections (6) to (9) deal with withdrawal of an authorisation.

Clause 32: Powers under section 29: supplemental

86.     This clause provides further detail regarding the directions that a constable can make under clause 29. Subsection (1) sets out how a direction under subsection 1(4) of clause 29 may be given, withdrawn or varied. Subsection (2) sets out the offence of knowingly contravening a direction and Subsection (3) introduces a power of arrest. Subsection (4) ensures that where the power to take a young person under 16 home in section 1(6) of clause 29 is exercised, the local authority should be notified.

Clause 33: Powers of community support officers

87.     This clause amends the Police Reform Act to allow community support officers to be given the powers to disperse groups and remove persons under 16 to their place of residence as described in clause 29. Community support officers are civilian employees of police forces designated by chief officers to exercise a range of powers within the relevant police area.

Clause 34:Code of Practice

88.     This clause gives the Secretary of State the power to issue a code of practice about the exercise of these powers. Subsection (1) states that the code of practice will cover the giving or withdrawal of the authorisations and the exercise of the power to disperse groups and return young people under 16 who are unsupervised in public places after 9pm to their homes. Subsection (2) allows the Secretary of State to revise the code of practice. Subsection (3) requires the Secretary of State to lay the code and any revisions before Parliament. Subsections (4) and (5) requires both the officers giving the authorisation and exercising the powers under this Part to have regard to the code.

Clause 35: Authorisations by British Transport Police

89.     This clause ensures that the powers to make authorisations and to make directions in this part of the Bill apply to British Transport Police officers.

PART 5: SANCTIONS ETC.

Clause 37: Anti-social behaviour orders

90.     This clause amends section 1 of the Crime and Disorder Act 1998 (the 1998 Act). Section 1 of the 1998 Act (as amended by the Police Reform Act 2002) permits the police, the British Transport police, local authorities and registered social landlords to apply for anti-social behaviour orders (ASBOs). Magistrates' courts can issue orders to persons over the age of 10 years who have acted in an anti-social manner and where the order is necessary to protect others from further anti-social acts. Section 1 of the 1998 Act defines an anti-social manner as that which causes or is likely to cause harassment, alarm and distress to one or more persons not of the same household as the person against whom the order is made. An ASBO prohibits that person from doing anything described in the order. Equivalent orders are available in the county court and in the Crown Court under sections 1B and 1C respectively of the 1998 Act.

91.     Subsection (2) amends section 1(1A) of the 1998 Act by adding housing action trusts (HATs) to the list of relevant authorities who can apply for an ASBO or an order in county court proceedings. The addition of HATs to the list also makes them subject to the requirement in section 1E(4) of the 1998 Act to consult the police and the local authority for the area in which the person resides or appears to reside. Subsection (3) amends section 1(1B) of the 1998 Act so that applications by HATs are limited to applications for an order which would protect from anti-social behaviour persons who reside in or who are in the vicinity of premises provided or managed by HATs.

92.     Subsection (4) inserts new subsections (10A) and (10B) into section 1 of the 1998 Act. Section 1(10A) will allow a local authority to prosecute for breach of an order where it is the relevant authority which obtained the order or where the person subject to the order resides or appears to reside in the authority's area. The Crown Prosecution Service will retain discretion to prosecute in relation to breach of an ABSO; this section confers a concurrent power on local authorities.

93.     New subsection (10B) will give applicant authorities a right to attend ASBO breach hearings in the youth court. Section 47(2) of the Children and Young Persons Act 1933 sets out the persons who have a right to attend a hearing at a youth court and section 1(10B) extends this automatic right of attendance to one representative from the relevant authority who obtained the order. This will enable the authority to monitor the proceedings and report back on the outcome to colleagues, as well as to support witnesses and victims as necessary.

94.     Subsection (5) inserts new subsections (3A), (3B) and (3C) into section 1B of the 1998 Act. These provisions enable relevant authorities to apply to have a person:

  • who is not a party to the principal proceedings in the county court, but

  • whose anti-social behaviour is material to those proceedings,

to be joined to the proceedings so that an order can be applied for against that person. Subsection (8) enables the provisions inserted by subsection (5) to be piloted for a specified period and to be commenced on different dates in relation to different age groups.

95.     Subsection (6) extends section 1B(5) of the 1998 Act to allow an individual against whom an order has been made, subsequent to his being joined to proceedings in the county court, to apply to the court which made the order for the variation or discharge of the order.

96.     Subsection (7) inserts a new subsection (1B) into section 9 of the 1998 Act to require a court making an ASBO against a person under the age of 16 to make a parenting order against the parents of that child if it is satisfied that the relevant condition contained in section 8(6) of the 1998 Act is fulfilled (or, if it is not so satisfied, to state in open court why it is not). The condition under section 8(6) is that the parenting order would be desirable in the interests of preventing repetition of the behaviour which led to the ASBO.

Clause 38: Certain orders made on conviction of offences

     97.     Subsection (1) amends section 1C of the 1998 Act to make clear that a court may make an order on conviction either at the request of the prosecutor or of its own volition.

98.     Subsection (2) inserts new subsections (3A) and (3B) into section 1C to clarify that the court may consider evidence from the prosecution and defence when deciding whether to make an order. It also allows for evidence not admissible in the criminal proceedings to be presented for the purpose of deciding whether to make an order.

99.     Subsection (3) inserts new subsection (9A) into section 1C to allow the local authority where a person subject to an order resides or appears to reside to prosecute for breach of that order. Subsection (3) also inserts new subsections (9B) and (9C) to remove automatic reporting restrictions from the order on conviction stage of a hearing against a juvenile in the youth court. Under new subsection (9C)(b) the court retains discretion to apply reporting restrictions.

100.     Subsection (5) inserts new subsections (3A) and (3B) into section 14A of the Football Spectators Act 1989 to clarify that the court may consider evidence from the prosecution and defence when deciding whether to make an order. It also allows for evidence not admissible in the criminal proceedings to be presented for the purpose of deciding whether to make an order. Subsection (6) inserts new paragraph (fa) into section 3(2) of the Prosecution of Offences Act 1985 to allow CPS prosecutors to conduct applications for orders on conviction for anti-social behaviour and football banning orders on conviction.

 
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Prepared: 27 June 2003