Part 5 of the Bill: ASBOs, curfew orders
and child residence orders
42. Clause 36 of the Bill would add housing action
trusts to the list of people and bodies who can apply for an anti-social
behaviour order under the Crime and Disorder Act 1998,
and allow additional parties to be added to proceedings for orders
if their allegedly anti-social acts 'are material in relation
to the principal proceedings'.
After a person has been convicted of an offence, clause 37 would
make it possible for the court to make an anti-social behaviour
order after hearing any additional evidence put forward by prosecution
and defence, which need not be evidence that would have been admissible
in the criminal proceedings.
Conducting proceedings for such orders following a conviction
would be the responsibility of the DPP.
In our view, these provisions do not give rise to substantial
issues in relation to Convention rights.
43. Clause 38 would allow fixed penalty notices for
disorderly behaviour to be issued to people aged 16 and 17 for
the first time, and would allow the Secretary of State to vary
the age by order. This seems to us to raise no human rights issues.
However, clause 39 and Schedule 2 would extend the operation of
curfew orders imposed on convicted persons under the age of 16,
by removing the 3-month limit to such orders under section 37
of the Powers of Criminal Courts (Sentencing) Act 2000. The period
for which people could be required to comply with directions of
a supervisor under a supervision order would be extended from
90 days to 180 days. On our initial examination of the Bill, it
seemed that these provisions might give rise to questions about
the proportionality of the interference with the right to private
and family life under ECHR Article 8. We therefore asked the Government
what made it think that the new arrangements would be proportionate
to a pressing social need so as to be necessary in a democratic
society for the purpose of Article 8.2, bearing in mind that a
range of other methods of dealing with these problems is already
available to the courts.
44. The Government responded with a full explanation
of the value of electronic monitoring or 'tagging', and of the
success of the schemes in pilot trials with children aged 10-15,
coupled with the intensive supervision and surveillance programme
administered by the Youth Justice Board. They help to keep offenders,
who might otherwise have had to serve a custodial sentence, at
home with their families and away from the bad influence of potential
offenders on the streets, and they reduce the risk of re-offending.
Courts have a discretion over the period for which an order runs,
up to what would be a six-month maximum for 10 to 15-year-olds,
and the sentencing court must make wide-ranging inquiries, and
would have to take account of guidance to be issued on the implementation
of the measures, before deciding that it is appropriate to make
45. We have
come to the conclusion that these considerations are sufficient
to persuade us that the extension to the anti-social behaviour,
supervision and curfew orders proposed in clauses 36 to 39 of
the Bill would be justifiable under ECHR Article 8.2 as a proportionate
response to a pressing social need.
46. A more controversial proposal, in terms of both
human rights and general policy (although we are concerned only
with its human rights implications), is paragraph 4(5) of Schedule
2 to the Bill. This would insert a new provision (paragraph 5A)
in Schedule 6 to the Powers of Criminal Courts (Sentencing) Act
2000, to allow a supervision order to require a child offender
(aged 10 or over) to live with a local authority foster parent
for a specified period not exceeding 12 months, if:
a) the offence would be punishable with imprisonment
if the offender were 18 or over;
b) the offence is so serious that a custodial
sentence would normally be appropriate in the case of a child
aged 12 or over;
c) the court is satisfied that the defendants
behaviour was due to a significant extent to the circumstances
in which the defendant was living, and that the imposition of
a residence requirement would assist in his or her rehabilitation;
d) the court has been notified by the Secretary
of State that arrangements are in place to implement the requirement
in the area, and the court has consulted the local authority which
would be responsible for implementing the requirement.
47. This engages the right to respect for family
life (ECHR Article 8). It involves disrupting the family, and
interfering with family relationships. It applies to children
as young as 10, who could not normally be subjected to a custodial
sentence except for a very small number of crimes (notably murder).
When we first examined the Bill, we provisionally took the view
that a very strong case would need to be made for the necessity
of such arrangements before they could be accepted as being proportionate
to a legitimate aim so as to be justifiable under Article 8.2.
There are limited safeguards in the legislation. In particular,
it is not clear how the responsible public authority would perform
its duty under Article 8 to ensure that everything possible was
done to maintain family relationships and to work towards the
reintegration of the family.
48. We therefore asked the Government:
a) how it expected that the responsible authority
to perform its functions under proposed new paragraph 5A of Schedule
6 to the Powers of Criminal Courts (Sentencing) Act 2000; and
b) why it thought that removing a young child
from his or her family for up to a year would be justifiable in
terms of Article 8.2.
49. The Government replied
that it viewed the fostering requirement as 'a positive and child-centred
response to serious and persistent young offenders'. It 'offers
a constructive and less damaging alternative to custody. This
intervention benefits the young person, the family and the wider
community and is justifiable in accordance with Article 8.2 for
the prevention of disorder or crime, the protection of health
and morals and the protection of the rights and freedoms of others.'
The Government's claim that fostering would be imposed only if
a young person would otherwise have received a custodial sentence
is hard to square with the fact that 10 and 11- year-olds can
only receive a custodial sentence for a narrow range of offences
(such as murder) so serious that a non-custodial sentence is unlikely
to be seriously considered.
50. On the other hand, there appears to be substance
in the Government's suggestion that fostering might remove the
child from chaotic home life or poor parenting with inadequate
supervision where this is a contributory cause of the child's
offending. When used in respect of persistent offenders aged 10
or 11, fostering could deal with problems before they become too
entrenched. The Government says that the child would receive a
stable and caring home life from specially trained foster parents
with back-up support, and would undertake structured activities
in the daytime to tackle the causes of the offending behaviour.
Meanwhile, the Government says that work would be undertaken with
the child's parents to improve their parenting skills to prepare
for the child's return home. In addition, if the child makes good
progress before the end of the period of fostering, an application
could be made to the court to revoke the fostering requirement.
51. The compatibility with ECHR Article 8 would depend
crucially on the Government being able to make good its promise
to provide specially skilled and supported foster carers, and
to work with the children and their parents towards reuniting
the family. This would require an intensive injection of human
and financial resources. There are signs that this might be forthcoming.
52. The Government intends that the power would be
used on a trial basis at first, with about 20 places a year taking
an average of 26 young people annually, with each foster placement
lasting an average of nine months. This is estimated to cost £2m,
including payments of £2,000 per week to the foster carers,
the cost of providing 24-hour support to foster carers, and the
cost of educational and family support and therapeutic intervention.
This works out at a cost of about £100,000 a year for each
foster place, or an average of £75,000 for each young person
who is subject to a fostering requirement. While the Government
hopes that savings of about £450,000 (that is £22,500
per foster place, or an average of £28,846.15 per young person)
would accrue to the Youth Justice Board by reducing the number
of places in secure juvenile custody places it would have to purchase,
it would leave a substantial amount of additional money and a
large body of personnel to be found if the pilot scheme is ever
converted into a full-scale penal option. If the high level of
either personnel or money necessary to support highly intensive
work with the young people and their families is ever reduced,
it would inevitably mean that the scheme could not satisfy the
requirements of ECHR Article 8.
53. Having considered all these matters, we
are not sufficiently confident that the Government's plans for
implementing its proposals in such a way as to justify fostering
requirements, and to benefit and reintegrate the child and his
or her parents in a family relationship, are sufficiently robust
and reliable to ensure that foster care requirements would satisfy
the requirements of ECHR Article 8. We draw this to the attention
of each House.
38 Cl. 36(2) Back
Cl. 36(5) Back
Cl. 37(2) Back
Cl. 37(6) Back
Annex A to the Home Secretary's letter, p 27 Back
See e.g. Olsson v. Sweden, Eur. Ct. HR, Series A, No. 130, judgment
of 24 March 1988, 11 EHRR 259; Johansen v. Norway, Eur. Ct. HR,
RJD 1996-III, No. 13, judgment of 7 August 1996, 23 EHRR 33 Back
Annex A to the Home Secretary's letter, p 27 Back
Bill 83-EN, para. 159 Back