![Sample our Law journals, sign in here to start your FREE access for 14 days]({"type":"image" , "src" : "/sda/5942/TOC-Subject-Sample-2021-Law.jpg"})
Acknowledgements
The author would like to thank Andrew Bainham, Loraine Gelsthorpe, Nicola Padfield and the anonymous reviewer for comments on an earlier version of this paper.
Notes
1. Although the numbers of children incarcerated decreased during the 1980s, from 7,900 in 1981 to 1,400 in 1991 (Criminal Statistics 1988, 1992 and quoted in NACRO (Citation2003a), the figure rose steadily through the 1990s. Since 2000 it has remained between 2,500 and 3,000. Currently, 2,995 children are held within the secure juvenile estate. Youth Justice Board figures for November 2006. See ⟨http://www.yjb.gov.uk/engb/yjs/Custody/CustodyFigures/⟩. Accessed 9 January 2007.
2. Also see the individual inspections of young offender institutions undertaken by HM Inspectorate of Prisons at http://inspectorates.homeoffice.gov.uk/hmiprisons/inspect_reports/hmp‐yoi‐inspections.html/. Accessed 8 January 2007.
3. Secure children's homes are based more on care principles and have a much higher staff‐child ratio than is the case with young offender institutions, which are prison‐like in their organisation and operation (NACRO Citation2003b).
4. Sutton Place Safe Centre in Hull, a local authority secure children's home.
5. Section 17(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; and (b) so far as is consistent with that duty, to promote the upbringing of such children by their families by providing a range and level of services appropriate to those children's needs.’
6. The type of services required depend on the needs identified, but might include parenting support and/or family group conferencing (with the relevant language support for his mother), training, education or employment support and advice for K, the provision of a mentor and drug awareness programmes. K also expressed his wish to be fostered.
7. Only one paragraph of the report addressed K's future needs and suggested that his child‐in‐need status might alter upon his release when many of the current protective factors (ie those of the secure home) would no longer be in place. The assessment considered that when K was released his needs would be best met by residing with his family.
8. The requirement under s 1 of the Children Act 1989 that the child's welfare be the paramount consideration does not apply to s 17 (or any of Part III) of the Children Act 1989.
9. See Lord Nicols of Birkenhead, para 32: ‘The first step towards safeguarding and promoting the welfare of the child in need by providing services for his and his family is to identify the child's needs for those services. It is implicit in section 17(1) that a local authority will take reasonable steps to assess, for the purposes of the Act, the needs of any child in its area who appears to be a child in need.’
10. The changes in K's circumstances were certain and predictable hence, contrary to their own arguments, it would not involve mere speculation by the local authority. Looking to the child's future circumstances is also in keeping with the wider statutory framework, in both the 1989 and 2004 Children Acts. The child's risk of suffering significant harm under s 31 of the 1989 Act, for example, requires future risk to be taken into account as well as current risk.
11. Most systems of youth justice can be placed on a spectrum that ranges from a welfare‐based approach at one end (emphasising the child's status as child) to a justice‐based approach at the other (emphasising the child's status and rights as person).
12. Though the government's agenda is itself contradictory. See further Hollingsworth (Citation2007b).
13. On the role of the Parole Board in relation to the 2003 Criminal Justice Act see Padfield (Citation2006).
14. However, note that Padfield (Citation2006) suggests that it should be considered a court and if it were, then an argument could certainly be made that s 44(1) applies to the Parole Board. Where the Home Secretary had a judicial role in setting and reviewing tariff periods for those children detained during Her Majesty's pleasure, the House of Lords held in ex p. Venables that, although not a court, the Home Secretary was exercising a judicial function and s 44(1) combined with Art 3 of the UN Convention required him to have regard to the child's welfare. See Lord Browne‐Wilkinson in R v Secretary of State for the Home Department, ex p. Venables [1998] AC 407. A similar argument might be made here, though it is a weak argument given that the Parole Board is assessing risk and, unlike the Home Secretary, is not determining the length of a sentence.
15. A judge might be reluctant to add to an already lengthy and unambiguous list.
16. This mirrors wider trends in challenges to the Parole Board and Padfield (Citation2006) at 14 notes that the Board has been ‘edged … ever closer towards a “fairer” process not by appeals to the Human Rights Act 1998 but to the common law’. In K's case, it is unlikely that Art 6(3) would apply because the process would not be deemed the determination of a criminal charge, but Art 6(1) might. See R (on the application of Smith) v Parole Board [2005] UKHL 1 and Craig (Citation2003).
17. Article 12: ‘(1) State parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child. (2) For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.’
18. According to Lord Justice Hooper: ‘obtaining the inmate's views about the tentative reasons for removing her from her unit … seems to me consistent with, if not required by, “the principle that safeguarding a child's welfare is of paramount importance”’ Home Secretary v SP, para 66.
19. Cf the decision in Mabon v Mabon [2005] EWCA Civ 634, [2005] 3 WLR 460, where Art 12 was used to support the separate representation for the children of divorcing parents where that would not otherwise usually be available.
20. Cf s 6 of the Care of Children Act 2004 in New Zealand, where such wording has been excluded.
21. It is necessary to ensure that it remains the child's voice that is heard and that the person appointed to help them does not have a conflict of interest – for example, if the child's probation officer is used then that person will have already formed his own view about the child's likely risk and the relevant issues and this may affect how well he advises the young person.
22. If one is to criticise the judgment it is perhaps that Mr Justice McCombe detracts somewhat from the idea of the child's autonomy by stating that without adult assistance K's representations are ‘nugatory’. Whether he means nugatory in the sense of ‘invalid’ or ‘of no intrinsic value’ is unclear. It is certainly not clear that there was no value in K's representation – indeed, he addressed many of the relevant issues even without adult help.
23. Article 37(b): ‘No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time.
24. The Common Assessment Framework for Children and Young People introduced as part of the Every Child Matters agenda might provide a useful model here.
25. Adults, for example, are not necessarily entitled to services – such as adequate housing – where parole has been refused or they have been subject to recall on that basis (R (Irving) v London Parole Board [2005] EWHC 605).