This chapter examines the framework of partnership created by the Crime and Disorder Act 1998 to deal with offending by children and young persons. It also includes the provisions of the Act in relation to orders against parents and police powers on dealing with truants.
2.5.2 Youth Justice System
The Crime and Disorder Act 1998 provides the aim of the youth justice system, and s. 37 states:
(1) It shall be the principal aim of the youth justice system to prevent offending by children and young persons.
(2) In addition to any other duty to which they are subject, it shall be the duty of all persons and bodies carrying out functions in relation to the youth justice system to have regard to that aim.
The 1998 Act requires that local authorities and the police work in partnership to develop and implement a strategy to reduce youth crime and disorder in their local areas.
Section 40(1) places a duty on each local authority, after consultation with the relevant persons and bodies, to formulate and implement for each year a ‘youth justice plan’, setting out:
(a) how youth justice services in their area are to be provided and funded; and
(b) how the youth offending team or teams established by them are to be composed and funded, how they are to operate and what functions they are to carry out.
2.5.3 Youth Offending Teams
Youth offending teams are multi-agency teams that are coordinated by a local authority with the intention of reducing the risk of young people offending and re-offending, and to provide counsel and rehabilitation to those who do offend.
The Crime and Disorder Act 1998, s. 39 states:
(1) Subject to subsection (2) below, it shall be the duty of each local authority, acting in co-operation with the persons and bodies mentioned in subsection (3) below, to establish for their area one or more youth offending teams.
(2) Two (or more) local authorities acting together may establish one or more youth offending teams for both (or all) their areas; …
(3) It shall be the duty of
(a) every chief officer of police any part of whose police area lies within the local authority’s area;
(aa) the Secretary of State in relation to his functions under sections 2 and 3 of the Offender Management Act 2007;
(ab) every provider of probation services that is required by arrangements under section 3(2) of the Offender Management Act 2007 to carry out the duty under this subsection in relation to the local authority; and
(b) every local probation board, clinical commissioning group, or health authority any part of whose area lies within that area, to co-operate in the discharge by the local authority of their duty under subsection (1) above.
(5) A youth offending team shall include at least one of each of the following, namely—
(a) an officer of a local probation board or an officer of a provider of probation services;
(aa) where the local authority is in England, a person with experience of social work in relation to children nominated by the director of children’s services appointed by the local authority under section 18 of the Children Act 2004;
(b) where the local authority is in Wales, a social worker of the local authority social services department;
(c) a police officer;
(d) a person nominated by a Clinical Commissioning Group or a Local Health Board any part of whose area lies within the local authority’s area;
(da) where the local authority is in England, a person with experience in education nominated by the director of children’s services appointed by the local authority under section 18 of the Children Act 2004;
(e) where the local authority is in Wales, a person nominated by the chief education officer appointed by the local authority under section 532 of the Education Act 1996.
(6) A youth offending team may also include such other persons as the local authority thinks appropriate after consulting the persons and bodies mentioned in subsection (3) above.
Youth offending teams carry out those functions which are required of the team with the local authority’s youth justice plan.
In addition, youth offending teams are required to establish youth offender panels to deal with referral orders (s. 21 of the Powers of Criminal Courts (Sentencing) Act 2000). Generally, a referral order is a way of dealing with an offender under the age of 18 on first conviction. The order may be made by the youth court (or exceptionally an adult magistrates’ court) (s. 16). The young offender is referred to the youth offender panel, where a ‘contract’ is agreed with the offender and their family, aimed at tackling the offending behaviour and its causes. The ‘contract’ may include: financial or other reparation to the victim; attendance at mediation sessions; unpaid work or service; curfew requirements; educational attendance; rehabilitation for drugs or alcohol misuse (ss. 23 to 27 of the 2000 Act).
2.5.4 Orders Against Parents
These orders are about influencing parental responsibility and control. The orders are designed to give parents more help and support to change the criminal and/or anti-social behaviour of their children in providing a framework where parents participate in their child’s supervision. The strategy here is one of prevention in attempting to dissuade a recurrence of criminality or truancy.
188.8.131.52 Parenting Orders
Parenting orders are provided by the Crime and Disorder Act 1998, s. 8 of which states:
(1) This section applies where, in any court proceedings—
(a) a child safety order is made in respect of a child, or the court determines on an application under section 12(6) below that a child has failed to comply with any requirement included in such an order;
(aa) a parental compensation order is made in relation to a child’s behaviour;
(b) an injunction is granted under section 1 of the Anti-social Behaviour, Crime and Policing Act 2014, an order is made under section 22 of that Act or a sexual harm prevention order is made in respect of a child or young person;
(c) a child or young person is convicted of an offence; or
(d) a person is convicted of an offence under section 443 (failure to comply with a school attendance order) or section 444 (failure to secure regular attendance at a school of registered pupil) of the Education Act 1996.
(2) Subject to subsection (3) and section 9(1) below, if in the proceedings the court is satisfied that the relevant condition is fulfilled, it may make a parenting order in respect of a person who is a parent or guardian of the child or young person or, as the case may be, the person convicted of the offence under section 443 or 444 (‘the parent’).
(4) A parenting order is an order which requires the parent—
(a) to comply, for a period not exceeding twelve months, with such requirements as are specified in the order; and
(b) subject to subsection (5) below, to attend, for a concurrent period not exceeding three months and not more than once in any week, such counselling or guidance sessions as may be specified in directions given by the responsible officer.
(5) A parenting order may, but need not, include such a requirement as is mentioned in subsection 4(b) above in any case where a parenting order under this section or any other enactment has been made in respect of the parent on a previous occasion.
In relation to s. 8(1)(b), the order under s. 22 of the 2014 Act is a criminal behaviour order, and a sexual harm prevention order means an order under s. 103A of the Sexual Offences Act 2003.
A parenting order may be made against one or both biological parents (this would include an order against a father who may not be married to the mother), and a person who is a guardian. Guardians are defined as any person who, in the opinion of the court, has for the time being the care of a child or young person (s. 117(1)).
The courts generally have the discretion as to whether or not a parenting order is made. Where a person under the age of 16 is convicted of an offence, the court shall, if satisfied that the relevant condition is fulfilled, make a parenting order (s. 9(1)). The requirements and directions of a parenting order should, as far as practicable, avoid any conflict with the parent’s religious beliefs, and any interference with when they normally work or attend an educational establishment (s. 9(4)).
184.108.40.206 Breach of a Parenting Order
The Crime and Disorder Act 1998, s. 9 states:
(7) If while a parenting order is in force the parent without reasonable excuse fails to comply with any requirement included in the order, or specified in directions given by the responsible officer, he shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale.
The section does not specify who would be responsible for instituting proceedings but it is assumed that this will be the ‘responsible officer’ (usually a member of the youth offending team) and that the normal processes will be followed whereby the CPS will make decisions as to a prosecution applying the usual test of public interest.
220.127.116.11 Binding Over of Parent or Guardian
The Powers of Criminal Courts (Sentencing) Act 2000, s. 150 provides for the binding over of a parent or guardian and states:
(1) Where a child or young person (that is to say, any person aged under 18) is convicted of an offence, the powers conferred by this section shall be exercisable by the court by which he is sentenced for that offence, and where the offender is aged under 16 when sentenced it shall be the duty of the court—
(a) to exercise those powers if it is satisfied, having regard to the circumstances of the case, that their exercise would be desirable in the interests of preventing the commission by him of further offences; and
(b) if it does not exercise them, to state in open court that it is not satisfied as mentioned in paragraph (a) above and why it is not so satisfied;
but this subsection has effect subject to section 19(5) above and paragraph 13(5) of Schedule 1 to this Act (cases where referral orders made or extended).
(2) The powers conferred by this section are as follows—
(a) with the consent of the offender’s parent or guardian, to order the parent or guardian to enter into a recognizance to take proper care of him and exercise proper control over him; and
(b) if the parent or guardian refuses consent and the court considers the refusal unreasonable, to order the parent or guardian to pay a fine not exceeding £1,000;
and where the court has passed on the offender a sentence which consists of or includes a youth rehabilitation order, it may include in the recognizance provision that the offender’s parent or guardian ensure that the offender complies with the requirements of that sentence.
The recognizance can be imposed on the parent or guardian for up to three years or until the offender is aged 18, whichever is the shorter (s. 150(4)).
For the purposes of s. 150, taking ‘care’ of a person includes giving him/her protection and guidance, and ‘control’ includes discipline (s. 150(11)).
2.5.5 Child Safety Orders
These orders are designed to help prevent children under 10 from turning to crime. Such orders are concerned with the child’s potential offending behaviour and in practice are likely to be used in conjunction with parenting orders under s. 8 of the Crime and Disorder Act 1998.
The Crime and Disorder Act 1998, s. 11 states:
(1) Subject to subsection (2) below, if the family court, on the application of a local authority, is satisfied that one or more of the conditions specified in subsection (3) below are fulfilled with respect to a child under the age of 10, it may make an order (a ‘child safety order’) which—
(a) places the child, for a period (not exceeding the permitted maximum) specified in the order, under the supervision of the responsible officer; and
(b) requires the child to comply with such requirements as are so specified.
Where it is proved to the satisfaction of the court that a child has failed to comply with any requirement included in the order, it may discharge the order and make in respect of the child a care order, or vary the order by cancelling any provision included in it or include another provision (s. 12(6)).
2.5.6 Removal of Truants to Designated Premises, etc.
The Crime and Disorder Act 1998, s. 16 states:
(1) This section applies where a local authority—
(a) designates premises in a police area (‘designated premises’) as premises to which children and young persons of compulsory school age may be removed under this section; and
(b) notifies the chief officer of police for that area of the designation.
(a) shall be exercisable as respects any area falling within the police area and specified in the direction; and
(b) shall be so exercisable during a period specified;
and references in each of those subsections to a specified area and a specified period shall be construed accordingly.
The powers apply only to those children and young people who are pupils registered at a school. It does not apply to children and young people educated at home who, quite lawfully, are out and about, alone or accompanied, during school hours.
‘Designated premises’ in s. 16(1)(a) are not defined in the Act though the legislators considered that in many cases children would ultimately be removed to their own schools.
18.104.22.168 Police Powers
The Crime and Disorder Act 1998, s. 16 provides that:
(3) If a constable has reasonable cause to believe that a child or young person found by him in a public place in a specified area during a specified period—
(a) is of compulsory school age; and
(b) is absent from school without lawful authority,
the constable may remove the child or young person to designated premises, or to the school from which he is so absent.
(3ZA) If a constable has reasonable cause to believe that a child or young person found by him in a public place in a specified area during a specified period and during school hours—
(a) is of compulsory school age;
(b) has been excluded on disciplinary grounds from a relevant school for a fixed period or permanently;
(c) remains excluded from that school;
(d) has not subsequently been admitted as a pupil to any other school; and
(e) has no reasonable justification for being in the public place;
Again ‘public place’ has the same meaning as in part II of the Public Order Act 1986.
‘Without lawful authority’ is qualified by s. 16(4) in that lawful authority will be that which falls within s. 444 of the Education Act 1996—leave, sickness, unavoidable cause or day set apart for religious observation.
The power of a constable to remove a child or young person to ‘designated premises’ is not an arrest in the traditional sense of detention, and statutory powers relating to arrests will not apply. However, the duty to explain the reason for a person’s ‘seizure’ may well apply in such cases.
As with the powers conferred in relation to curfew notices, it appears probable that the common law rule entitling a constable to use reasonable force would apply. However, legal commentators are not convinced that this is the case, as the use of force could be seen as having a damaging effect on relations between the police and young persons and the possibility of criminal or civil action against individual officers. The requirement for the officer to have ‘reasonable cause to believe’ that the person meets the criteria at (a) and (b) is more stringent than mere suspicion.
The Education Act 1996 provides that penalty notices can be issued to parents or guardians who fail to ensure the regular attendance of their child of compulsory school age (5–16) who is registered at a state school, or fail to ensure that their excluded child is not found in a public place during school hours without a justifiable reason. If a child is found in such circumstances, designated local authority officers, headteachers (and authorised deputy headteachers and assistant headteachers), police officers and community support officers can issue a fixed penalty notice (ss. 444A and 444B).
The penalty to be paid will be £60 for those who pay within 21 days and £120 for those who pay within 28 days (Education (Penalty Notices) (England) (Amendment) Regulations 2013 (SI 2013/757) and Education (Penalty Notices) (Wales) Regulations 2013 (SI 2013/1983) (W. 193)).