|
|
Law - Challenging anti-social behaviour
27th July 2004
B e f o r e :
THE HONOURABLE MR JUSTICE NEWMAN
____________________
Between:
THE QUEEN (on the application of "M"
a child proceeding by his litigation friend and grandmother,
Jean Wild) Claimant
- and -
SHEFFIELD MAGISTRATES' COURT Defendant
____________________
(Transcript of the Handed Down Judgment of
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
____________________
Mr Anesh Pema (instructed by Mundy Coutts-Wood) for the Claimant
Mr Simon Vaughan (instructed by Sheffield City Council) for
the Interested Party
____________________
HTML VERSION OF JUDGMENT
____________________
Crown Copyright ©
Mr Justice Newman :
1. This application for judicial review raises an important
point in connection with anti-social behaviour orders. It
highlights circumstances where a conflict of interest will
arise when a local authority, having parental responsibility
for a child under the Children Act 1989, exercises its powers
under the Crime and Disorder Act 1998 to apply for an anti-social
behaviour order ("ASBO") against the child in its
care.
2. Under section 1 of the Crime and Disorder Act 1998 a local
authority is a "relevant authority", having the
power to make an application for an ASBO. Under section 22
of the Children Act 1989 a local authority has a duty to "safeguard
and promote [the] welfare of a child in its care". The
"welfare" of a child in care may or may not be furthered
by the making of an ASBO but the interests of the child in
the decision making process and in the court process must
be protected. Despite the obvious potential for a conflict
of interest to arise, the issue has, so far as the court has
been informed, never been addressed. It has not received attention
in any Home Office guidance issued to local authorities. In
the current guidance: "A Guide to Anti-Social Behaviour
Orders and Acceptable Behaviour Contracts", the Home
Office draws attention to the duty to assess children's needs
arising from section 17 of the Children Act 1989 and observes
(page 111): "The assessment of the child's needs should
run in parallel with evidence gathering and the application
process". This being a reference to the ASBO process.
The potentiality for conflict is not alluded to in the guidance.
The existence of concurrent duties was pointed out by Richards
J in R (AB & SB) v Nottingham City Council [2001] EWCA
Admin 235 (para 48).
3. As originally formulated, this application raised an issue
as to whether a local authority could ever apply for an ASBO
in respect of a child in its care. This root and branch attack
upon the local authority's exercise of powers was, in my judgment,
correctly not pursued. As it became apparent in the course
of argument, the facts of this case, which will be likely
to be mirrored in many others, demonstrate that measures must
be devised to prevent a breach of the rights of a child in
care occurring in connection with an application and the court
process for an ASBO.
The Facts
4. "M" was born on the 2nd January 1989. On 19th
December 1995, aged 6, he was made subject to a care order
under section 31 of the Children Act 1989 and was received
into the care of Sheffield City Council. Since then his mother
and Sheffield City Council have shared parental responsibility.
He was initially placed in various residential care homes
across the country until 1999 when he was placed with his
maternal grandmother. He stayed for a number of months and
then went to live with a paternal aunt. Considerable problems
then arose. There was a considerable degree of offending and,
as a result, he was placed again in a number of residential
units. He absconded from all these placements, invariably
returning to his family. He was returned again to his maternal
grandmother in February 2001, on a temporary basis. At all
material times since he has remained so placed, but the temporary
character of the placement has not been regularised to meet
with the reality of the position. The relationship of his
grandmother with the Sheffield City Council has not always
been harmonious.
5. The summons issued in the Magistrates' Court by Sheffield
City Council ("the County Council") alleges that
between 11th July 2001 and the date of the summons, namely
15th October 2003, at various locations within the Sheffield
area, "M" had behaved in an anti-social manner.
Whilst the summons in its general part makes such an allegation,
the description of acts listed in the summons concern allegations
of conduct occurring between 17th April 2003 and 17th September
2003. It is unnecessary to detail each and every allegation.
Suffice it to say that they disclose a catalogue of serious
offending, as well as serious anti-social behaviour. Some
of the allegations became the subject of charges and were
proved in court. For example, on 30th May 2003 the Sheffield
Magistrates' Court placed him on bail in connection with allegations
involving an attempt to steal a motor vehicle. On 16th July
he pleaded guilty to the lesser offence of interfering with
the motor vehicle and he was then placed on an intensive supervision
and surveillance programme (ISSP) which was attached to a
supervision order which had been made earlier in May 2003.
This order and the ISSP condition were revoked on 21st October
2003 following "M" being convicted of a common assault,
the possession of cannabis and breaching the order. At the
same date he was made the subject of a curfew order at the
request of the ISSP team and he was then sentenced to a further
ISSP programme.
6. The terms of the ISSP required his attendance at a named
school, as well as attendance on a programme for summer activities.
His first experience of attending school in a structured sense
was in June 2003 when he experienced bullying at the school.
Although he continued to breach conditions, it can be seen
that since the conditions of an ISSP were imposed, as part
of his sentence, his offending pattern became less frequent
and less severe.
7. The documents disclose that the institution of ASBO proceedings
in respect of "M" was considered for the first time
at a case conference of the ASBO panel on 4th February 2003,
but a statutory review, by those responsible for his care,
had taken place on 16th December 2002. On the occasion of
the review it was noted that: "His current placement
is not meeting his needs for adequate control and protection".
Further that : "He is a highly vulnerable young person
and the local authority need to actively exercise parental
responsibility in gaining control of "M" and promoting
his welfare". Further that : "Consideration should
be given to the need for a secure accommodation order".
Yet further: "In the immediate term an alternative placement
should be sought. He needs a residential placement offering
him boundaries and well structured regime". In conclusion
it was noted : "The reviewing officer will send an urgent
memo detailing her concerns to the team manager and service
manager within social services".
8. The Home Office Guidance, to which I have referred, makes
three points in its section on "Court Procedures for
Juveniles" which are material to the position which prevailed
for M after the December and to the considerations of the
ASBO panel review. It states:-
"The court will require information about his or her
background, home surroundings and family circumstances".
Secondly:-
"The assessment of the child's needs should run in parallel
with evidence gathering and the application process".
Thirdly:-
"It is essential that parents and guardians take responsibility
for the behaviour of their children".
9. A number of representatives attended the December review
including, in particular, Gail Northcliffe, the social worker
discharging parental responsibility on behalf of the local
authority for M. In addition there were representatives from
the youth offending team ("YOT"), a tutor, as well
as a senior teacher and others from the school which M had
attended. Neither M's mother nor his grandmother attended,
but both had been invited.
10. At the meeting on 4th February 2003 Gail Northcliffe was
present. No members of the YOT team, nor anybody from the
school, although invited, attended. The other persons present
included police officers and representatives from the Sheffield
City Council housing department, who were promoting the proposal
that an ASBO should be applied for. The contribution from
Gail Northcliffe is recorded. She informed the meeting that
she had only been working with M since December 2002. She
also stated that M could be suffering from Attention Deficit
Hyperactivity Disorder (ADHD) and that it had been suggested
that M's grandmother should see whether his General Practitioner
(GP) would refer him for assessment. Mr Geoff Holland, the
local education authority attendance officer, informed the
meeting that M had not attended school for about 12 months,
that they had attempted to make contact with him but the school
found it difficult engaging with him. The notes then record
"All agencies agreed that an ASBO should be pursued.
Gail Northcliffe stated that she agreed to the application
in principle but would like to see what actions YOT are currently
engaged with". Among the number of agreed actions and
timescales it was agreed : "Geoff [plainly Geoff Holland]
is to investigate what statement of need M currently has and
if this can be amended to include an assessment for ADHD".
11. The evidence does not reveal whether Gail Northcliffe
was given prior warning of the proposal to consider an application
to apply for an ASBO against M. An important question arises
as to whether the person responsible for the parental care
of a child in care should, as a matter of principle, attend
such a meeting. Yet further, if attendance is appropriate,
whether that person should participate and express approval
or disapproval for the proposal. I am not concerned to review
Gail Northcliffe's actions, nor have I heard enough to take
a position or criticise her, but I can see that she was placed
in a difficult position and was required to take part in a
decision capable of being adverse to the interests of M, when
as recently as December steps to protect his position had
been discussed and agreed upon.
12. On 3rd March 2003, namely about a month later, a further
statutory review in respect of "M" was held. Those
attending included Gail Northcliffe, YOT representatives and
representatives from the school. The purpose of the review
was to ensure that M's day-to-day care needs were being met
and that the care plan was appropriate. Under the heading
'legal status and legal proceedings' the following is recorded
in the note of the meeting:-
"M is co-operating with his YOT team worker and his supervision
order. The housing department have applied for an anti-social
behaviour order in respect of M. Chris and Gail [Chris being
in the YOT team] remarked that at present "M" feels
persecuted by the police, as they appear to be keeping watch
outside his house. M is to be encouraged to contact his solicitor
on this matter".
Under the heading 'health', the following is stated:
"Gail feels that M is in good physical health. His grandmother
wonders whether he may have attention deficit hyperactivity
disorder (ADHD). She has been advised to speak to M's GP about
a possible assessment".
13. A number of points arise for comment from this record.
First, the housing department had not applied for an ASBO.
It had not even decided to apply for an ASBO. It had reached
a conclusion in principle that one should be applied for,
but consideration had to be given to a number of factors,
including the question whether it could be established that
an order was necessary. Further, as appears from the record
of the panel meeting (paragraph 9 above), Geoff Holland was
to investigate M's statement of needs and see whether it was
to include an assessment for ADHD. Secondly, Gail Northcliffe
had "suggested on 4th February that M may be suffering
from ADHD", whereas her position at this meeting appears
to differ. It is the grandmother's views (not hers) which
are recorded. Thirdly, and more significantly, the review
team simply recorded the position in connection with the ASBO
application. It was an application touching M which called
for anxious, detailed and prompt consideration.
14. The outcome of the meeting is summarised and recorded.
In short, M was to remain in care but steps were to be taken
to assess whether his grandmother should be authorised to
become a foster carer. The assessment was to be completed
by the end of March 2003. His grandmother was to be encouraged
to take him to his general practitioner regarding the suspicions
she had about M having ADHD. The need for M to see a solicitor
is recorded as being in connection with "….the
alleged police presence near his house on a regular basis",
not in connection with the proposed application for an ASBO.
Indeed nothing is recorded in connection with the housing
department's intention to apply for an ASBO.
15. The ASBO panel held a conference on 24th April 2003. It
was attended by representatives of the local authority housing
team and police officers. Among potential subjects for an
ASBO was M. The panel agreed that anti-social behaviour involving
M had been proved ,
"but the case is to come back before the panel next month
after report has been done by social services to decide if
the second limb, namely is an order necessary, has been proved".
The record includes the following note:-
"His social worker believed he was suffering from ADHD
and recommended that his grandmother get their doctor to refer
him for an assessment".
16. The restraint shown by the panel in waiting for a report
from Social Services is to be commended, but the process adopted
to obtain the information was inappropriate. The next panel
meeting was scheduled for 22nd May 2003. In preparation for
that meeting, Gail Northcliffe prepared the report from social
services. It is headed: 'Report for ASBO Panel' and is on
a proforma used by the ASBO team. It was not appropriate for
the report required from social services. The report takes
the form of answers to a series of questions. The questions
included the following:
Question: "Are there health/disability problems that
may be relevant in this matter?"
Gail Northcliffe responded :
"M is to be assessed for ADHD. A referral has been made
to ……… by his GP".
Question: "Specify action that you have already taken
to try and deal with the problem of anti-social behaviour".
Answer : "Have had regular sessions with M and his nan
to get him back into school and try to keep him out of trouble".
Question : "What further action are you intending to/do
you think may be appropriate to try and deal with the subject's
involvement in anti-social behaviour?"
Answer : "Try to get other projects involved such as
…….. project".
Question : "What warning has been given to the subject
about his/her behaviour? Have there been written or verbal
warnings and are there records of these warnings?"
Answer : "I have not given warnings in terms of ASBO.
Specific discussion has been had re behaviour and continuation
of his placement".
Question : "Has the subject been warned that they may
be subject of anti-social behaviour order?"
Answer : "I told M about this when housing approached
me. Housing have not discussed this with M and his Nan though
as per above I am aware".
Question : "What anti-social behaviour has been carried
out since this warning was issued?"
Answer : "Not sure. Some arrests have been made, I think".
Question "Is the person with parental responsibility
co-operative in trying to deal with the anti-social behaviour?"
Answer : "His Nan comes for him. She attends court and
police station with him. On the whole, she tries to work with
agencies".
Under the heading 'Any other relevant information' Gail Northcliffe
wrote:-
"I do feel that an ASBO may not solve M's problems. We
are making some progress as he is now seeing professionals
and wanting to be in school which he was not doing when I
took over the case at Christmas".
17. The report from social services should not have been constrained
and directed by the ASBO panel statement. As proposed, the
panel met on 22nd May 2003. No one from the Social Services
Department was present but it seems clear that they had the
report from Gail Northcliffe. The response of the meeting
to the report is recorded as follows:-
"Louise [tenancy enforcement team representative] pointed
out that although M's social worker didn't support the application,
the purpose of an ASBO is to protect other people suffering
from M's behaviour".
Having agreed at the previous meeting that anti-social behaviour
had been proved and notwithstanding the information received
from social services, the panel agreed:-
"that an order was necessary and it was now appropriate
to proceed with an ASBO application".
It follows that the panel's consideration of the issue of
necessity concentrated on the need to protect others and did
not extend to the question whether it was in the interests
of M that an application be made.
18. There were other reports from other agencies before the
panel, for example, education. A Mr Gallivant, in answer to
the question "Are there health/disability problems that
may be relevant in this matter", responded "Not
to my knowledge". To the question : "What further
action are you intending to take or do you think may be appropriate
to try and deal with the subject's involvement in anti-social
behaviour?" the response was "Consideration for
an ASBO". The report from housing, in answer to the question
"What warning has been given to the subject about his
or her behaviour? Have there been written or verbal warnings
and are there records of these warnings", the author
responded "Prolific offender". The question: "Has
a needs assessment been carried out in respect of the child
and his or her family? Please give details of the provision
of services and any result that this has had", there
is simply the answer "Yes" with no other details.
The conclusion reached was that an ASBO should be applied
for and that the housing department should lead in making
the application.
19. Having regard to the detailed information and assessments
which were under consideration by social services, the extent
of the information and detail before the panel must be regarded
as deficient. No application was made to the court until 15th
October 2003, nearly five months after the decision to proceed.
There is no record of any continuing consideration being given
to M's position. There is no record of any contact with social
services. However, when the summons came to be issued, owing
no doubt to the time limit requiring summonses to be issued
within six months, twenty-one incidents of anti-social behaviour
involving M were relied upon occurring between April and September
2003. It follows that, because of the delay, all the offending
actually relied upon for the ASBO took place after the decision
to apply for it and after M had appeared on a number of occasions
in the Youth Court in connection with his offending. These
events comprised significant factors relevant to the appropriateness
of applying for an ASBO.
20. Six days after the issue of the summons for an ASBO the
Sheffield Youth Court had to sentence M. It had the benefit
of a pre-sentence report prepared by Sheffield City Council's
YOT officer, Claire McConaghy, who also prepared a breach
report. The recommendations and, as a result, the sentence
and order passed by the Sheffield Youth Court renewed and
strengthened the existing ISSP order and imposed a curfew.
Further, it contained an intervention plan which would include
family support for the grandmother and liaison with M's care
officer. The conclusion of Ms McConaghy is recorded as : "Offending
pattern has become less frequent and severe". There is
nothing to show this was taken account of either by the social
services department or the housing department carrying responsibility
for the ASBO application.
The ASBO proceedings
21. The first court proceedings took place before the District
Judge on 23rd October 2003. The case was adjourned for a response
from M who was legally represented.
22. On 10th November 2003 M's response and summary of his
case was served on the Magistrates' Court and City Council.
23. On 11th November 2003 a further statutory review by the
Social Services Department took place. The remarks made at
that meeting were generally positive about M's progress and
his behaviour and his adherence to the ISSP order. The fact
that an ASBO application had been made was simply noted. On
12th November M's solicitors wrote to the ASBO team requesting
full disclosure of the social services records and asking
for details of the steps taken to resolve the issue with M,
prior to the application to the court for the ASBO being made.
On 14th November M attended court with his grandmother. On
that occasion Sheffield City Council's confirmed that the
summons and the application had been served on the social
worker for M, namely Gail Northcliffe. The District Judge
expressed concern that nobody was there from the social services
department to support or accompany M and the case was adjourned
for 28 days. The judge was right to express concern.
24. By a letter dated 8th December 2003 the solicitor for
M was informed that M's current social worker, now Gerard
Morgan, would attend court. Gail Northcliffe, unfortunately,
had ceased to be responsible for M.
25. By a letter dated 7th January 2004 Mark Webster, the Director
for Legal and Administrative Services and Head, in control
of the ASBO team at Sheffield City Council, wrote to M's solicitors
enclosing documents from the YOT team relating to his ISSP.
The letter went on to state :
"I also enclose a statement from Claire McConaghy, M's
youth offending team worker. Please would you note that YOT
staff are employed by the local authority and, as such, are
my clients, therefore you should not approach them directly
in connection with this application. I hope to provide you
with the social services disclosure shortly".
26. In his witness statement the solicitor for M records that
the restriction on access to YOT staff presented a handicap
in the conduct of his defence to the application for the ASBO.
Further, it created a strain in the relationship between M
and Ms McConaghy because it became known to M that she had
made a statement supporting the local authority in the ASBO
application.
27. M's solicitor needed to have access to M's social worker
who, by this time, was Mr Gerard Morgan. He was a potential
witness. The social services files would be in evidence and
someone would have to speak to it. Further, the outstanding
issue in relation to ADHD made contact with the social worker
particularly material. Further, M was entitled to have the
opportunity of being supported in connection with the application
by the local authority. Mr Webster responded to the enquiry
by a letter dated 11th February 2004, in the following terms:
"With regard to your request to speak to Gerard Morgan
as a potential defence witness, Gerard will agree to meet
with you. He has requested that his line manager and a legal
representative are present at any meeting. Please could you
suggest a time when this meeting could take place so that
I can check his availability, obviously there is very little
time left before the final hearing".
28. M's solicitor, although not happy with the restriction,
attended at the offices of the Sheffield City Council Social
Services Department on 11th February, in company with a clerk,
who was to take notes of the meeting. Mr Morgan was present
with his legal representative and his line manager. However,
his representative was Ruth Chisholm, who was also the legal
representative conducting the ASBO application on behalf of
the Council. In the course of the meeting, Mr Morgan stated
that he was not prepared to be a witness on behalf of M, but
he would be a witness for the local authority, which he said,
was his employer. Mr Morgan obviously regarded himself as
being on "the other side" in this application. It
is not clear why he should have done so because Gail Northcliffe
had not considered the application would solve his problems
and since that date his offending behaviour had improved.
The solicitor felt bound to inform M of the position which
had been adopted by Mr Morgan.
29. By this time, an indication had been given of an intention
to take a preliminary point on behalf of M about the conflict
of interest to which the application gave rise.
30. The preparation of the case and the conduct of the proceedings
gave rise to difficulties. M was unable to call as a witness
anybody from the local authority discharging parental responsibility
on his behalf. Further, by this time, M himself was distrustful
of the social worker who fulfilled that responsibility.
31. The hearing was on 16th and 17th February 2004. M had
been to see his GP and had a consultation fixed with a paediatrician
for late February 2004.
32. The time required for argument on the preliminary point
resulted in an adjournment. Further request was made for an
adjournment pending an application for judicial review, but
the magistrate refused that application. The hearing of the
substantive application was adjourned to 31st March 2004.
M's solicitor was informed, for the first time, that Sheffield
City Council intended to apply for an interim ASBO order that
day. Despite opposition from M's solicitor, the magistrate
granted it. The order made has now expired, but on 16th March
2004 when he granted permission to apply for judicial review,
Moses J. stayed it.
The Issues
33. The issues fall for consideration in two parts. First,
how the interests of a child in care can be protected when
the authority responsible for the child's care makes an application
for an anti-social behaviour order against the child. Secondly,
whether it was appropriate to apply for an interim ASBO.
The Legislation
34. Section 17 of the Children Act 1989, in its material parts,
provides as follows:-
"(1) It shall be the general duty of every local authority
(in addition to the other duties imposed on them by this Part)—
(a) to safeguard and promote the welfare of children within
their area who are in need;
…
(10) For the purposes of this Part a child shall be taken
to be in need if—
(a) he is unlikely to achieve or maintain, or to have the
opportunity of achieving or maintaining, a reasonable standard
of health or development without the provision for him of
services by a local authority under this Part;
(b) his health or development is likely to be significantly
impaired, or further impaired, without the provision for him
of such services; or
…
and "family" , in relation to such a child, includes
any person who has parental responsibility for the child and
any other person with whom he has been living".
35. Section 22, in its material part, provides as follows:-
"(1) In this Act, any reference to a child who is looked
after by a local authority is a reference to a child who is—
(a) in their care; or
….
(3) It shall be the duty of a local authority looking after
any child—
(a) to safeguard and promote his welfare; and
….
(4) Before making any decision with respect to a child whom
they are looking after, or proposing to look after, a local
authority shall, so far as is reasonably practicable, ascertain
the wishes and feelings of—
(a) the child;
(c) any person who is not a parent of his but who has parental
responsibility for him; and
(d) any other person whose wishes and feelings the authority
consider to be relevant,
regarding the matter to be decided.
(5) In making any such decision a local authority shall give
due consideration—
(a) having regard to his age and understanding, to such wishes
and feelings of the child as they have been able to ascertain;
(b) to such wishes and feelings of any person mentioned in
subsection (4)(b) to (d) as they have been able to ascertain;
and
….
(6) If it appears to a local authority that it is necessary,
for the purpose of protecting members of the public from serious
injury, to exercise their powers with respect to a child whom
they are looking after in a manner which may not be consistent
with their duties under this section, they may do so".
36. Section 33(1) is in these terms:-
"Where a care order is made with respect to a child it
shall be the duty of the local authority designated by the
order to receive the child into their care and to keep him
in their care while the order remains in force …
(3) While a care order is in force with respect to a child,
the local authority designated by the order shall—
(a) have parental responsibility for the child…."
37. Section 1 of the Crime and Disorder Act 1998 as amended
and in so far as is relevant provides as follows:-
"Anti-social behaviour orders
1) An application for an order under this section may be made
by a relevant authority if it appears to the authority that
the following conditions are fulfilled with respect to any
person aged 10 or over, namely -
(a) that the person has acted, since the commencement date,
in an anti-social manner, that is to say, in a manner that
caused or was likely to cause harassment, alarm or distress
to one or more persons not of the same household as himself;
and
(b) that such an order is necessary to protect relevant persons
from further anti-social acts by him.
1(A) In this section and sections 1(B) and 1(E) "relevant
authority" means
(a) the council for a local government area
(b) the chief officer of police of any police force maintained
for a police area; …
1(B) In this section "relevant persons" means
(a) in relation to a relevant authority falling within paragraph
(a) of subsection 1(A) persons within the local government
area of that council;
(b) in relation to a relevant authority falling within paragraph
(b) of that subsection persons within the police area;…
38. Section 1(D) provides for interim orders to be made upon
application. Subsection (2) is in these terms:-
"If, before determining an application to which this
section applies, the court considers that it is just to make
an order under this section pending the determination of that
application ("the main application"), it may make
such an order".
39. Section 1(E) provides for consultation requirements and
stipulates that:-
"(2) Before making an application to which this section
applies, the council for a local government area shall consult
the chief officer of police of the police force maintained
for the police area within which that local government area
lies."
40. The Magistrates Court (Anti-Social Behaviour Orders) Rules
2002, SI No. 2784, provide for interim orders to be made without
notice being given to a defendant. Rule 5 provides:-
"(1) An application for an interim order under section
1D may, with leave of the justices' clerk, be made without
notice being given to the defendant.
(2) The justices' clerk shall only grant leave under paragraph
(1) of this rule if he is satisfied that it is necessary for
the application to be made without notice being given to the
defendant."
Issue 1
41. The statutory purpose underlying the jurisdiction of the
Court to make an ASBO is to protect the community from repeated
conduct amounting to anti-social behaviour. Its imposition
may deter the culprit and to that extent may be of benefit
to him or her. Thus there may be a concurrence of interest,
between the applicant and the person bound by the order but
this limited potential for symmetry, whilst relevant, cannot
prevent a conflict of interest arising in the circumstances
under consideration.
42. Where a local authority applies for an ASBO it discharges
a duty which it owes to the residents and locality affected
by the anti-social behaviour. It is not concerned to consider
whether the order will benefit the person to be bound. Any
failure to apply for an order on this ground could give rise
to legitimate complaint by those the Act was designed to protect.
43. Where a local authority discharges duties in connection
with a child in its care it is bound to act so as to promote
the welfare of the child in question and must consult with
the child and others and give due consideration to the wishes
and feelings of those consulted (see section 22 of the Children
Act and subsection 4 in particular).
44. The civil jurisdiction for controlling disorderly behaviour
comprised by the Crime and Disorder Act serves an important
social purpose and its efficacy is, in part, derived from
the partnership between various agencies which underpin its
operation. The "parents" of a culprit are not within
the partnership of housing, police and the YOT team. An order
brings a person within the control and discipline of the law
and the courts, placing that person at risk of a penal sanction.
The risk of penal sanction and the range of penalties in the
event of breach are serious and will regularly involve loss
of liberty (see section 1(1) of the 1998 Act – six months
or a fine or both on summary conviction. Five years or a fine
or both on conviction on indictment). Any parent, whether
natural or statutory, and no matter how determined to bring
discipline to bear on a child, would hesitate to place their
child at risk of detention in custody.
45. It follows that I have no doubt that a conflict of interest
arises for local authorities in the circumstances under consideration
in this case. On the facts, as they occurred through the decision
making process and in the court proceedings, I am satisfied
that the conflict gave rise to prejudice to M. However, for
the reasons which I shall endeavour to give, I am satisfied
that the conflict does not disempower a local authority and
preclude it from making an application under the Crime and
Disorder Act against a child in its care. Since this extreme
contention has not been pursued it will be sufficient to state
my reasons in summary form.
46. Section 22(6) of the Children Act provides:-
"If it appears to a local authority that it is necessary,
for the purposes of protecting members of the public from
serious injury, to exercise their powers with respect to a
child whom they are looking after in a manner which may not
be consistent with their duties under this section they may
do so".
Notwithstanding the threshold of "serious injury"
(which it is not suggested will, as a matter of course, be
met in connection with an ASBO) the Act contemplates the authority
remaining empowered to act to fulfil its duty to the public.
47. Further, to negative one statutory power in favour of
another, whilst theoretically a legal possibility, would be
a conclusion of last resort, where compatibility can be met
by the adoption of appropriate measures and procedures.
What should be done?
48. It is not possible for this court to draw up the detailed
measures and procedures which will be required in order to
avoid the conflicts to which this case has given rise. The
best the court can do is to identify the problem areas and
draw attention to the ambit of the legal principle in play.
Consultation
49. A decision to apply for an ASBO is a "decision"
within the meaning of section 22(4), which subsection requires
the authority to ascertain the "wishes and feelings"
of the child and any person who is not a parent of his but
who has parental responsibility for him and any other person
whose wishes and feelings the authority consider to be relevant.
In this instance the "wishes and feelings" of M,
his grandmother, his mother and the social workers discharging
parental duties on the part of Sheffield City Council had
not been obtained. The Report for the ASBO panel prepared
by Gail Northcliffe discloses minimal contact and does not
reveal that she was aware of the need, according to section
22(4), for the subsection to be complied with. The fact that
responsibility for taking the lead on the application for
an ASBO was with "housing" cannot absolve the authority
from complying with section 22(4) before it makes a decision.
That can only be done by officers, who are discharging care
duties for the child in question, taking the necessary steps
and reporting in full to the authority.
50. The material should be prepared and presented not as though
it is a report for the ASBO panel, but as a report for the
authority on behalf of the child. The ASBO panel should consider
the material before it proceeds to making an application to
the court. This is because the considerations to which section
22(4) will give rise are likely to be relevant to the question
whether it is necessary to apply for an ASBO.
The ASBO decision
51. If, having seen the full report, independently drawn up
by the social services/workers within the authority, the "lead"
section decides to apply for an ASBO, that decision must be
communicated to all concerned. The relevant social worker
should not participate in the decision to apply for an ASBO.
Exceptional circumstances could require clarification or a
new matter to be the subject of report. The danger in participating
is the risk it would create to actual independence and the
loss of perceived independence, particularly on the part of
the child. Written reports would meet most needs.
Preparation for and Attendance at Proceedings at Court
52. The social services/workers for the authority should be
available to assist and be witnesses at court, if requested
as witnesses for the child in question. No court should (save
where exceptional circumstances prevail) make an order against
a child in care without someone from the social services who
can speak to the issue.
53. Where social services wish to support an ASBO application,
after detailed consideration with the child and relevant persons,
different considerations may apply. The court has insufficient
information to detail the procedures which should be adopted
nor has it insight into the likelihood of an ASBO application
being supported.
54. The solicitor having responsibility for the authority's
ASBO application should not attend meetings with the child's
solicitor and social services representatives. The need for
an attendance of a solicitor for the officer should be rare.
55. Once a decision has been taken to apply for an ASBO there
should be no contact on the issue between the ASBO team and
the social services section without the solicitor for the
child being informed and consenting.
56. I have avoided prescription. The administration within
individual authorities is likely to differ. The exact status
of the participating sections within an authority are outside
the knowledge of the court. The exact composition and status
of the YOT team is not within the court's present information.
The Interim Order
57. It should not have been granted without notice. Notice
at the hearing in the circumstances of this case was insufficient.
It should not have been granted where there was no one present
from social services. The order appears to have been drawn
without regard to the ISSP already in existence and the prevailing
curfew. Orders should contain prohibitions directed to the
anti-social behaviour. Care should be taken not to include
by negative prohibitions what in truth amount to mandatory
orders to do something specific. In this instance, a condition
of residence was imposed by prohibiting M from living other
than at one address. It is unnecessary in this case to decide
whether the order as granted was outside the Act, but it is
to be noted that the ISSP order had already included a number
of relevant conditions.
The Future
58. There can be no further progress in the ASBO application
or any application for an interim order until the steps taken
above have been completed. The grounds upon which the order
was based could well have been superseded by events. In all
the circumstances, the interim order having expired, no relief
is necessary. The terms of the judgment should serve to protect
the future position.
59. Whilst it has not been necessary to give relief in this
case due to the expiry of the order and the guidance given,
the case raises important issues which other local authorities
should be made aware of. Therefore, permission is granted
for this judgment to be publicised.
Asbos 'to criminalise youngsters'
There are fears Asbos will target more than criminals
Government plans to extend the use of anti-social behaviour
orders have angered youth workers, who say there is no evidence
they are effective.
Asbos criminalise youngsters, without tackling "root
behaviour", they say.
Children's Society policy director Kathy Evans told BBC News
Online: "Youngsters being stigmatised as being the problem,
is a problem in itself."
And National Youth Agency development officer Bill Badham
accused ministers of "stoking the fear of crime".
This fear was being used to justify an extension of powers
that would "criminalise young people for non-criminal
activity", he told BBC News Online.
Ms Evans added: "Many youngsters do have behavioural
problems that need to be addressed - but there is no evidence
anti-social behaviour orders make any difference."
For many young people hanging around on the streets with their
friends is their best choice option
Children's Society policy director Kathy Evans
And what Asbos failed to do was "drill down to the real
issues", which could relate to young people's schools,
homes or families.
For many youngsters who behave badly the problems are "contextual",
Ms Evans told BBC News Online.
"It often comes down to a lack of anything else to do.
"For many young people hanging around on the streets
with their friends is their best choice option."
The answer, according to Ms Evans, is to give youngsters "a
sense of ownership and participation in their communities".
Youth projects
"The vast majority of young people do not misbehave in
these ways, are much more likely to be the victims of crime,
and want to contribute to the solution.
"Where young people are involved, there is a difference
in their response to their communities and their sense of
belonging."
Ms Evans welcomed government plans to invest more money in
youth projects.
The punishment for breaching an Asbo is quite severe - you
can go to prison for five years, and that makes it a deterrent
that can't be ignored
Nottingham City Council
And she urged ministers to "improve the quality of life
for communities by investing in them, and allowing them to
take control of how their communities are improved".
By its own admission, Nottingham City Council is "one
of local authorities that has made most use of Asbos".
A spokesman told BBC News Online: "They are the only
power we have to stop local communities being affected by
anti-social behaviour.
"The punishment for breaching an Asbo is quite severe
- you can go to prison for five years, and that makes it a
deterrent that can't be ignored.
"They are never made lightly, and always as a last resort
- but we will continue to use them where it is appropriate
to do so.
"It is about giving the wider community the opportunity
to lead a quiet life." |
