Anti-social behaviour: children, schools and parents

Abstract

Under Prime Minister Tony Blair's New Labour government, increased criminalisation of previously non-criminal behaviour, anti-social behaviour and greater accountability of children and parents for their behaviour were evident. The article provides an overview of anti-social behaviour legislation and the implications for children, schools and parents. It focuses upon the interconnectedness of families and schools with the intention to better inform educational leaders of the changes to roles and responsibilities under the legislation.

Introduction

The implications of anti-social behaviour legislation for schools are essentially four. Firstly, schools may be involved in preparation and implementation of Anti-Social Behaviour Orders (ASBOs) or related orders, contracts and agreements through the Local Education Authority (LEA). Secondly, if not directly involved with ASBOs, the children concerned are members of a school community. Therefore, the school authorities may be involved in monitoring behaviour or be requested to comment upon a child's behaviour. Thirdly, Steer (2005, p. 64) recommended the power to apply for parenting orders to be extended to schools accompanied by clear guidance and examples of good practice, and finally, through greater awareness of anti-social behaviour, schools may place increased emphasis upon studying ‘acceptable behaviour’ within the curriculum. This paper reviews anti-social legislation introduced by Tony Blair's New Labour government to better inform school leaders of the powers that exist in relation to the behaviour of pupils and parents inside and outside school. Increased individual responsibility has been pivotal to New Labour's social policies. It is evident that the onus of responsibility for the behaviour of children has moved from the state to the family.

A definition of ‘anti-social behaviour’ was offered to parliament in s.1(i)(a) of the Crime and Disorder Act 1998. ‘Anti-social behaviour’ means acting 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’. The Times made 74 references to ‘anti-social’ or ‘antisocial’ in 1993 but by 2003 the number had risen to 292 and continues to rise (Burney, 2005, p. 3). Anti-social behaviour and ASBOs are part of the national language and provide a regular source of confronting and disturbing stories. In England and Wales the cost of anti-social behaviour to government agencies is almost £3.4 billion. To this must be added substantial indirect and emotional costs (National Audit Office, 2006, p. 1). To combat anti-social behaviour the Crime and Disorder Act 1998 s.37(1) clearly states, ‘It shall be the principal aim of the youth justice system to prevent offending by children and young people’.

Background

The murder in February 1993 by two ten-year-old boys of two-year-old James Bulger on Merseyside resulted in unprecedented abhorrence within the community (Muncie, 2004, p. 3). The then Prime Minister, John Major, advocated the nation ‘condemn a little more and understand a little less’. Tony Blair, then Shadow Home Secretary, pledged commitment to being ‘tough on the causes of crime’ (Scraton, 2007, p. 3). Upon election the Labour government passed the Crime and Disorder Act 1998 which established within public agencies responsibility for crime prevention. It provided ‘for the first time, an overarching mission for the whole youth justice system’ (Newburn, 2002, p. 560). Together with the Youth Justice and Criminal Evidence Act 1999 they represent ‘the most radical overhaul of the youth justice system in fifty years’ (Goldson, 2000, p. vii). In November 2003 the Anti-Social Behaviour Act 2003 received Royal Assent. It was identified as the single most important policy measure of the Labour government's ‘war’ on juvenile anti-social behaviour (Field, 2003, p. 18). An indication of the importance of this policy in the eyes of the government is evident in the fact that the Home Office called anti-social behaviour ‘low level criminal and sub-criminal behaviour’ (Home Office, 2003, para. 5.17). The then Home Secretary David Blunkett said unequivocally, ‘I want to end the culture where playing the system and making other people's lives a misery is seen as something that goes unpunished’ (Home Office, 2003). The Home Affairs Committee was determined to ‘stand with the victims of anti-social behaviour and their experience rather than … the perpetrators’. To this end, anti-social behaviour legislation contained measures across five government departments and strengthened existing legislative powers (Smith & Carr, 2004, p. 2).

The sequence for development of the Anti-Social Behaviour Act 2003 is to be found in the White Paper, Respect and Responsibility – Taking a Stand Against Anti-Social Behaviour which preceded it (Home Office, 2003). The White Paper was influenced by the earlier report, Living Places: Powers, Rights, Responsibilities (DEFRA, 2002) which centred on rights, responsibilities and power available to relevant authorities to enforce responsibilities. As stated in the White Paper, ‘Our aim is a society where we have an understanding that the rights we all enjoy are based in turn on the respect and responsibilities we have to other people and to our community’ (Walsh, 2003, pp. 105–106). The Anti-Social Behaviour Act 2003 provided more power to police and other agencies in an effort to confront anti-social behaviour. The ASBO is one of several measures introduced to combat anti-social behaviour since the Crime and Disorder Act 1998 and the Criminal Justice and Police Act 2001. The Police Reform Act 2002 additionally allowed Housing Associations, other registered social landlords and the British Transport Police to apply for ASBOs (Grier & Thomas, 2003/4, pp. 5–6).

In the initial years of ASBOs relatively low numbers were imposed (Burney, 2002, 2004). By late 2003 only 1330 ASBOs had been made (Blears, 2003) and by late 2004 the number was 3,826, with nearly 60% issued against juveniles (Pollard, 2003). In the summer of 2004 ‘ASBO Ambassadors’ were despatched to areas identified as not making sufficient use of the orders (Squires & Stephens, 2005a, p. 518). In March 2006, the Home Office announced that 7,356 ASBOs had been issued since 1999 in England and Wales (Wikipedia, 2007). A subject who fails to comply with an ASBO could appear before the court and be dealt with by criminal proceedings. Penalties ranged from a fine to up to five years in prison. While the Crown Court may impose the maximum, the magistrates’ court is limited to imposing no more than six months imprisonment. The White Paper, Higher Standards, Better Schools For All (HM Government, 2005, p. 11) advocated that the recommendations of the Steer report, School Behaviour and Discipline be implemented, including the capacity for LEAs to apply for ASBOs.

Definitions of anti-social behaviour

One of the difficulties with this approach is the lack of clarity in defining exactly what is ‘anti-social behaviour’. It is described as ‘a vague term, with a broad definition, which in the last few years has become a rallying call for some onerous and intrusive measures against individuals’ (Ashworth, 2004, p. 263). It is considered ‘so vague that almost anything could break it’ (Brown, 2004, p. 205). In the field of criminal law what is or is not an offence is defined, even if sometimes imperfectly, in advance. This might be thought of as one aspect of the concept of the rule of law. Unfortunately, so-called anti-social behaviour is problematic because anti-social behaviour is ‘more discretionary, subjective and less definitive’ (Thomas, 2005, p. 6) and the nature of the definition of anti-social behaviour is subject to interpretation (Bland & Read, 2000; Moore & Lawrence, 2000). The Home Office has acknowledged ‘the difficulty to identify a single definition of anti-social behaviour’. Squires and Stephens (2005b, p. 3) note the acknowledgement in the London Anti-Social Behaviour Strategy consultation document that ‘anti-social behaviour often involves clashes of values and standards’.

Examples of anti-social behaviour include: nuisance neighbours, vandalism, graffiti, fly-posting, dealing and buying illegal drugs, crack houses, begging, anti-social drinking, dumping and abandoning cars, rowdy and nuisance behaviour, yobbish and intimidating behaviour, trespassers, and misuse of fireworks (Home Office, 2003; BBC, 2005). For the Government anti-social behaviour is not restricted to behaviour of groups that threatens people but includes ‘the fear of what they may do’ which adversely affects the use of open space and facilities within a community (House of Commons, 2003, 2003c. 155). It suffices that police ‘reasonably believe’ anti-social behaviour is a possibility in the future. Such interpretation involves predicting behaviour, although the police must have ‘reasonable grounds’ for ‘believing’ the ‘alarm or distress’ is genuine (Walsh, 2003, p. 106). The Home Affairs Committee acknowledged anti-social behaviour as ill defined but considered the ‘flexibility’ of interpretation a positive, not negative, feature of the Anti-Social Behaviour Act 2003. The Committee believed:

• the definition works well from an enforcement point of view and no significant practical problems appear to have been encountered;

• exhaustive lists of behaviour considered anti-social by central government would be unworkable and anomalous;

• anti-social behaviour is inherently a local problem and fails to be defined at a local level. (House of Commons, 2005, vol. 1, para. 44)

The distinction between anti-social behaviour and criminal behaviour is blurred because such behaviour includes criminal behaviour. However, not all anti-social behaviour is criminal.

Children

The Crime and Disorder Act 1998 divided juveniles into three age groups for the purpose of responsibility in criminal matters. However, because the Crime and Disorder Act 1998 abolished the doctrine of doli incapax (‘incapable of evil’), the presumption for children over 10 but under 14 years of age to be incapable of evil, it is only necessary to distinguish between two groups of children, those under 10 and those over 10. Children under 10 years of age are presumed to be incapable of committing any crime (Padfield, 2002) and are immune from prosecution (s.8(7A) Crime and Disorder Act 1998 as amended by s.18 Anti-Social Behaviour Act 2003). Initially, the age for criminal liability was legally established at seven years, it was raised to eight years in 1933 and to 10 years in 1963, where it remains. Smith (1994, p. 427) notes, ‘we now have a law which holds that a person is completely irresponsible on the day before his tenth birthday, and fully responsible as soon as the jelly and ice-cream have been cleared away the following day’!

While a child under 10 years is incapable of a criminal offence, anyone over the age of criminal responsibility who incites a child to commit a crime is liable as the principal offender. Where but for the age rule a child commits a crime, they may be dealt with under the Children Act which in many instances involves social services supporting the family. For children aged 10 to 13 years the legal concept of crime is wholly relevant. Guiding children away from anti-social behaviour was one of the five major outcomes identified in the Green Paper, Every Child Matters (2003). The subsequent paper, Youth Justice – The Next Steps (2003) advocated a clear and visible response to such behaviour from age 10 upwards. The Home Office identified the six ‘key objectives’ of the youth justice system as, ‘tackling delays, creating a sense of responsibility in young offenders, intervention to deal with the risk factors of re-offending, encouraging reparation to victims, and reinforcing parental responsibility’ (Collins & Cattermole, 2006, p. 176).

The principal aim of the Crime and Disorder Act 1998 was to ‘prevent offending by children’. Existing powers under the criminal justice system and civil remedies are extensive. They include reprimands, warning and referral, reparation and youth community orders. Such orders range from custodial sentences, community rehabilitation, supervision, exclusion and curfew. Within schools, the governing body of the school and headmaster share responsibility for school discipline (Bradford-Smart v West Sussex CC [2002]) and must comply with existing statutes.

Child Safety Orders are akin to an ASBO but were initially designed for children under the age of 10, with no criminal sanction for any breach (Greatorex & Falkowski, 2006, p. 284, see a-d). The Labour government believed that ‘… early intervention when a child begins to behave anti-socially or disruptively in a way which puts him or her at risk of offending is more effective than waiting until that child is old enough to be dealt with by the youth justice system’ (Home Office, 2000). The maximum period for orders is three months or, in exceptional circumstances, 12 months (Crime and Disorder Act 1998, s.11(4)). As amended by s.48 of the Criminal Justice and Police Act 2000, the Child Safety Orders are now aimed at children under 16.

In relation to children under the age of 10 unsupervised on the streets late at night, s.14 of the Crime and Disorder Act 1998 provides for local authorities to use curfews to address the problem of unsupervised children. The setting of hours of operation is for local determination and may not apply before 9 p.m. and not earlier than 6 a.m. within a specific area, unless supervised by a parent or responsible person aged 18 or over. Each local child curfew notice may last up to 90 consecutive days. The flexibility in local child curfew notices allows variation of time for different age groups of children. Where a breach of a local child curfew is found, the police need to deal with the child in an appropriate and sensitive manner. In such cases, the police shall remove the child to their place of residence. However, if no parent or responsible person aged 18 or over is available to accept custody, the child may temporarily be taken to the police station or to accommodation with the prior agreement of the social services department.

The final warning system was designed to replace the existing, but frequently ineffective ‘repetitive’ cautions but it goes further. For an initial offence, the juvenile should receive a reprimand; for a second, a final warning and for a third offence, be charged. The reprimand and final warning need to be given orally but accompanied by written information that details explicitly the seriousness of a reprimand and that a subsequent offence will result in a final warning or prosecution. It is likely that repetitive and serious offenders under the Crime and Disorder Act 1998 will receive custodial sentences.

Under s.17 of the Children Act 1989 there is a general duty laid upon local authorities to protect and promote the welfare of children in need. Such children are those who are lost or abandoned, who lack the opportunity of a reasonable standard of health, whose development is impaired or likely to be further impaired or are disabled. In R v Lambeth LBC ex p K (2003), the High Court held that there should be a systematic assessment of needs including a child's developmental needs, parental capacity and environmental factors. Richards J said:

I am left with the impression that the defendant has concentrated unduly on the anti-social behaviour proceedings and insufficiently on the discharge of its duty, in particular under section 17 of the Children Act, to assess SB's needs and make provision for them. (R(AB and SB) v Nottingham City Council [2001] EWCA 235 (Admin) at para 48)

In R (on the application of A) v Leeds Magistrates’ Court and Leeds City Council [2004] EWHC 554 (Admin), Mr Justice Stanley Burnton acknowledged that, while the interests of the child were primary, they were not ‘a magic talisman’, the absence of which would invalidate an order, rather public interest was a primary consideration.

Recent developments include identification of young offenders subject to an ASBO together with photographs, details of previous behaviour and current behavioural restrictions (Grier & Thomas, 2003/4, p. 1; Stone, 2003). In 2004 an appeal by the representative of three teenagers against the publicity regarding their ASBOs was lost. The publicity included ‘3000 leaflets showing the boy's pictures, an article in a council newspaper, an internet story that described the gang's behaviour as “animalistic” and members as “thugs and bully boys”’. Lord Justice Kennedy accepted the argument that the publicity was ‘reasonable’ (Stanley, Marshall and Kelly v. Metropolitan Police Commissioner and another [2004] EWHC 2229 (Admin) QBD). Other developments include introduction of Parental Compensation Orders (PCOs), where a specified parent or guardian of a child aged nine years or less may pay compensation of up to £5,000 (Pema & Heels, 2006, p. 6).

Schools

The anti-social behaviour of students has a detrimental effect upon children and schools. Anti-social behaviour takes many forms within a school and may result in exclusion. In 2005 there were nearly 10,000 permanent exclusions from school and some 200,000 individual pupils involved in 344,000 suspensions that lasted, on average, four days. Blair (2005) stated:

Some schools have found voluntary parental contracts helpful with attendance where parents are ready to accept their responsibilities. By the end of 2005 all LEAs should have arrangements so that they or their schools can also issue parenting contracts for behaviour at school; and parenting orders for parents who won't agree to co-operate voluntarily.

In the executive summary of the White Paper, Higher Standards, Better Schools For All (HM Government, 2005, p. 11) is a clear statement that the recommendations of the Steer's report, School Behaviour and Discipline be implemented by:

• introducing a clear and unambiguous legal right for teachers to discipline pupils, backed by an expectation that every school has a clear set of rules and sanctions;

• extending parenting contracts and orders, so that schools can use them to force parents to take responsibility for their children's bad behaviour in school;

• requiring parents to take responsibility for excluded pupils in their five days of a suspension (by ensuring they are properly supervised doing schoolwork at home) with fines for parents if excluded pupils are found unsupervised during school hours; and

• expecting headteachers to use their newly-developed powers and funding collectively to develop on or off-site provision for suspensions longer than five days (instead of fifteen days at present) and insisting that all exclusions are properly recorded. (HM Government, 2005, p. 11)

The Anti-Social Behaviour Act 2003 provides under s.19 that, where a pupil is excluded for a fixed period, or permanently, on disciplinary grounds or failed to regularly attend, the relevant LEA or governing body may initiate a parenting contract with a parent of the pupil. LEAs currently are required to provide full time education for permanently excluded pupils from the sixteenth day of exclusion. However, in inner city secondary schools, only 2% of pupils accounted for nearly half of unauthorised absence in those schools (House of Commons Library, 2003, pp. 55–63).

The White Paper (2005) states that from February 2004, parenting contracts and parenting orders have been available and that schools, local authorities and parents have agreed to more than 400 contracts. The Labour government stated its commitment to:

Allow parenting contracts to be used earlier in order to tackle poor behaviour before exclusions occur. … We will extend parenting orders, so that schools can use them to make parents take responsibility for their children's bad behaviour in school and so that they can be used for serious misbehaviour where the pupil has not been excluded. (HM Government, 2005, p. 85)

The circular, Parenting Contracts and Orders Guidance acknowledged that not all parents have the necessary skills to prevent or limit the anti-social behaviour of their children. The intention of parenting programmes is to ‘reduce parenting as a risk factor and enhance parenting as a protective factor’ (Sikand, 2006, p. 234).

A parenting order consists of two elements. The first is normally imposed when an order is made. It is a requirement upon the parents to attend counselling to help them deal with their child. The second is discretionary and can require the parents to exercise control over their child's behaviour. A member of the local Youth Offending Team (YOT) supervises all elements of the parent orders.

Parenting contracts provide an additional option that is backed by statute. However, failure to comply with parenting contracts like an Acceptable Behaviour Contract (ABC) cannot lead to breach of contract or civil damages, and there is no direct sanction for a parent's failure to comply with, or refusal to sign, a parent contract’ (Collins & Cattermole, 2006, p. 244).

The link of truancy to youth crime and anti-social behaviour is recognised. While truancy in itself is not a criminal offence for the student, the engagement of police with it was formalised in the Crime and Disorder Act 1998 s.16 as an aid to LEAs. The average primary school truant missed nine days and the average secondary school truant missed 17 half-days of school (Pupil Absence in Schools in England 2001/2 SFR 30/2002/17, December 2002). To establish truancy the LEA needs to prove that the child:

• is registered at a local school;

• is of compulsory school age;

• failed to regularly attend; and

• the absence was without leave, due to illness or unavoidable cause.

The only lawful excuses for non-attendance in regards to non-boarding pupils are: ‘the school is not within walking distance of the child's home; or no suitable arrangements have been made by the LEA for his transport to and from the school or to enable him to become a registered pupil at a school near his home’ (Collins & Cattermole, 2006, p. 236).

Under s.444 of the Education Act 1996:

If … the parent knows that his child is failing to attend regularly at the school and fails without reasonable justification to cause him to do so, he is guilty of an offence.

However, in London Borough of Sutton v S [2004] EWHC 2876, the magistrates held that the parents’ defence of ‘reasonable justification’ for the non-attendance of the 14-year-old child on 29 days in a 174-day period, was established. The magistrates found there were limits to what parents could force a child with ‘serious emotional and behavioural problems’ to do, including attending school. Nevertheless, as held in Barnfather v Islington London Borough Council [2003] EWHC 418 (Admin), liability for the offence is strict in that it is not necessary to prove knowledge or fault on the part of the parent.

The practice of ABC contracts has spread throughout the country. The ABCs were pioneered in the London Borough of Islington and research into the scheme reported mainly positive results (Bullock & Jones, 2004). Although ABCs are voluntary, non-legal, non-enforceable agreements, they are drawn up between families, children and enforcement agencies as a means to try and focus upon an identified anti-social behaviour pattern (Greatorex & Falkowski, 2006, p. 283). The ABCs detail behaviour which the child agrees to avoid doing in the future. Failure to comply with an ABC is identified as an incremental step to a full ASBO (Home Office, 2000, Appendix G).

Responsibilities of the LEA include the identification of acceptable behaviour and punishment within schools. Existing powers are extensive; for example, under the Education Act 1996 s.547, it is a summary offence to cause or permit a nuisance or disturbance to lawful users of school premises. Such power includes the exclusion of a pupil because of the anti-social behaviour of a parent at or near a school, who has received due notice and opportunity to make representations (R. v Board of Governors and Appeal Committee of Bryn Elian High School, Ex p. Whippe [1999] E.L.R. 380). This provision does not diminish a parent's right to enter school property. In Wandsworth LBC V A [2000] E.L.R. 257, the Court of Appeal found the parent had a licence to enter the school in the circumstances of the case and that this opportunity was denied to her.

The Department of Education and Skills has endeavoured to target schools with major problems with truancy and anti-social behaviour. The Behaviour Improvement Programmes between 2002–2006 involved approximately 1500 primary and 400 secondary schools in efforts to target resources to such schools. The Education and Inspection Act 2006, effective from September 2007, seeks closer partnerships between school and parents in order to:

• use parenting contracts to address a child's problem behaviour before it reaches exclusion from school;

• make it an offence if parents fail to ensure their child is not found in a public place without a reasonable justification during the initial five days of exclusion;

• ensure educational provision for excluded pupils from day six rather than the current day 16 of exclusion. (DfES, 2007, p. 2)

Criminal and anti-social behaviour outside school cannot be addressed by educational parenting contracts and orders. However, truancy and misbehaviour at school are factors associated with offending. While it is normal for YOTs to lead in cases where LEAs and YOTs work with the same parent or child, there are cases where it would be more appropriate for the LEA to lead. Contracts and orders are not designed to replace the extensive voluntary partnerships with parents but rather are a further option supported by legislation. Powers available to schools to reduce anti-social or criminal behaviour continue to increase. For example, the Violent Crime Reduction Act 2006 has, since May 2007, allowed schools to search groups of pupils suspected of carrying weapons.

Parents

In relation to parents, the debate about rights and responsibilities of family members pre-dates New Labour's focus upon anti-social behaviour. For example, the Children and Young Person Act 1963, the Children Act 1989, the Child Support Act 1991 and the Family Law Act 1996 delineate children's rights and parental responsibilities. The Children Act 1989 identified parental rights as parental responsibilities owed to the child, as opposed to a right to exercise power over the child as a possession (Such & Walker, 2005, p. 41). A child is recognised as the product of parental influence and any manifested deficiencies, as evident in offending behaviour, are presumed to justify parental liability. The Crime and Disorder Act 1998 defined aspects of parental responsibility and provided for legal enforcement (Gelsthorpe, 2001).

There are three ways of working with parents:

• voluntarily, where parents seek support;

• ‘voluntarily’ with a parenting contract which is a more formal approach where the parent is unwilling to co-operate and a YOT suggests a parenting contract; and

• parenting orders where the parent is unwilling to co-operate, the YOT can apply for or recommend a parenting order. (Home Office, 2004, p. 4)

Under the Crime and Disorder Act 1998, parenting orders have been available nationally since 1 June 2000. However, the Anti-Social Behaviour Act 2003 and the Criminal Justice Act 2003 amended such orders in order to increase their flexibility and availability effective from February 2004 (Home Office, 2004).

The ASBO also provides in part for the issue of court orders and financial penalties against parents who are unwilling to accept their responsibilities. Under the Powers of Criminal Courts (Sentencing) Act 2000 s.137(1), the court shall order a parent or guardian to pay costs or fines incurred by a convicted person under the age of 18 years. The order shall be made unless the court is convinced ‘the parent or guardian either cannot be found’ or ‘it would be unreasonable to make an order for payment, having regard to the circumstances of the case’. For example, in R v J-B [2004] EWCA Crim 14 (13 January 2004), [2004] Crim. L.R 390, a 16-year-old with no previous convictions committed a street robbery, with gratuitous violence, in the company of others. A compensation order of £1,000 payable by the father was made by the Crown Court under s.137 of the 2000 Act. Curtis J in the Court of Appeal, in overturning the order of the lower court, noted no causative fault by the father.

As the [trial] judge commented that the [father] together with his wife had done well in looking after this delinquent, it cannot be said that he identified any fault on his part or that the [father] had done anything that had caused the delinquent to commit this very serious crime … The judge … failed to identify in what way the [father] had fallen down on his parental obligations. (Stone, 2004, p. 138)

This case therefore emphasises that the parent or guardian has a statutory right to be heard before any such order is made, and perhaps suggests that it would not be reasonable to make an order under s.137 where there has been no failure by the parent or guardian.

The power is discretionary if the young person is aged 16 years or older (s.137(3)). The Anti-Social Behaviour Act 2003 s.87(3) allows for penalty notices to parents or guardians of offenders between the ages of 10 and 16 years.

Under s.20 of the Anti-Social Behaviour Act 2003, local education authorities may seek a parenting order where a child is excluded from school because of serious misbehaviour. Sir Alan Steer's report (2005, p. 64) recommends this power be extended to schools. There were 284 parenting orders made between September 1998 and March 2000. However, since then until December 2004, 5,631 orders had been made. This is compared to 659 parenting contracts agreed between April and December 2004 plus 4,551 voluntary parenting interventions (National Children's Home, 2005, p. 5).

The court may impose a parenting order in the following circumstances:

• where a child safety order has been made in respect of a child;

• where an anti-social behaviour order, or sex offender order, is made on a child or young person;

• where 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 school of registered pupils) of the Education Act 1996;

• where a referral order has been made. (Arthur, 2005, p. 236)

Parenting orders are intended to prevent repetition of the behaviour by the child or young person that initially caused the order to be issued. Parents will be required to attend counselling sessions for no more than once per week and for no longer than three months. Should the court consider it necessary, additional requirements may apply for up to one year. For example, that the child attends school every day or is home by a certain time each night (Bainham, 1998, p. 490).

Penalty notices may be issued to parents by a school and LEA if the child plays truant. LEAs have the power to charge parents of truant pupils with on-the-spot fines of up to £50 since February 2005. If not paid within 28 days, the cost rises to £100 with possible prosecution if not paid within six weeks. ‘Should a parent fail to comply with the requirements of the order, they may be liable to a fine of up to £1,000’ (Arthur, 2005, p. 236). In excess of 11,500 parents have been placed on ‘fast-track’ schemes to face prosecution if pupils’ attendance does not quickly improve. Such parents may face a fine of up to £2,500 or three months in prison if they fail to ensure their child attends school (BBC News, 2005).

Parenting orders were toughened by removing the restriction that parents could be asked to attend one counselling session a week and the possibility of residential courses for parents was introduced. Parenting orders are now available for parents of children excluded from school and parenting contracts have been introduced. The parenting contract built on the practice of ABC contracts. For example, parenting orders relating to a 13-year-old who has committed a number of crimes at night and regularly truanted may require the parents to attend training, plus ensure attendance at school and supervision of the child at home each night by a responsible adult. Should parents not be willing to voluntarily participate and a YOT assesses the parent could, if supported, improve their child's behaviour, the YOT may apply for, or recommend, a parenting order related to the child's conviction. Such a recommendation would necessitate an assessment of the family's circumstances. The YOT would need to identify:

• parenting risk and protective factors;

• individual needs and circumstances of the parents;

• if a programme of support could have a positive impact upon the child;

• identify any disability, mental health problems or special educational needs of the parent, and if identified how they are to be addressed; and

• any other issues that may affect a parent's capacity to participate. (Collins & Cattermole, 2006, p. 241)

At all times the YOT must be cognisant of the need for objectivity and the possibility of any invalid ‘assumptions relating to culture, race or gender’ of the parents and child.

Criticisms

Squires and Stephen (2005a, pp. 517–518) identified concerns about ASBOs. Firstly, ASBOs represent a departure from criminal due process. Secondly, disquiet exists about the balance between ASBO enforcement and family support provisions. Thirdly, there is a perceived blurring of purpose in the use of ASBOs. Fourthly, there is discrepancy between community expectations and the priorities of authorities. Finally, in April 2005 ASBO Concern was launched by advocacy groups for the abolition of ASBOs.

Grier and Thomas (2003/4, pp. 4–5) summarised the earlier criticisms by six academic lawyers of the ASBO Bill during its passage through Parliament as:

• the difficulties of defining anti-social behaviour;

• the low standard of proof in civil proceedings;

• the wide scope of possible prohibitions on behaviour;

• the disproportionate character of the penalty for breaching an ASBO; and

• the questionable workability of the whole scheme. (Ashworth et al., 1998, pp. 8–13)

It has been argued that application for an ASBO should observe normal criminal proceedings requirements, rather than civil proceedings. For example,

• the imposition of an ASBO will attract publicity and stigma in the same way as a criminal conviction;

• prohibitions attached to an ASBO may significantly restrain the defendant's freedom and should be seen as penalties; and

• where a defendant is convicted for contravening an ASBO the sentencing court is banned from imposing a conditional discharge (Crime and Disorder Act 1998 s.1(ii), suggesting that the imposition of the ASBO is itself seen as a form of conditional discharge on first conviction). (Leng et al., 1998 as quoted by Grier & Thomas, 2003/4, pp. 4–5)

Thomas et al. (2004) note that an increasing number of guidelines for more inclusive and preventive practices are emerging:

These include: early discussion of cases involving juveniles by informed partnerships, the establishment of clear and effective protocols for dealing with cases, resorting to ASBOs only as a last resort, recognition of the needs and concerns of victims, appropriate support to victims and perpetrators, very careful consideration given to any publicity regarding cases, and close monitoring and, where necessary, appropriate reviewing of orders where circumstances or behaviour patterns change. (Squires & Stephen, 2005a, p. 525)

In November 2004, the then Commissioner for Human Rights, Alvaro Gil-Robles, expressed concern that excessive use of ASBOs would more likely exacerbate such behaviour and crime than prevent it because of the large number of children receiving immediate custody upon conviction for breaches of an ASBO. The Commissioner questioned ‘whether the detention of juveniles for non-criminal behaviour will not lead to more serious offending on release’ (Gil-Robles, 2004, paras. 117–119).

Official crime figures and longitudinal research reveal that juvenile offenders are more likely to be from low income, working class families than comfortable middle class homes (Bartol & Bartol, 1998; Heimker, 1997). The devastating effect of harsh economic conditions on low income families directly impacts upon children due to the adverse influence upon parents and their resultant negative behaviour towards children. For example, families in poverty frequently lack the opportunity to provide the emotional stability and intellectual stimulation pivotal to the healthy development of children. Research reveals that sons of unskilled manual workers are three times more likely to become delinquents than those of professional and salary workers. Kolvin et al. (1990) reported that one in six children living in more affluent districts became offenders compared to one in three in the poorest neighbourhood. Essentially, the more deprived the family, the more likely their children would offend (Arthur, 2005, pp. 238–239).

While the majority of recipients of anti-social behaviour intervention do not re-engage in such behaviour, there has been a limited effect upon a core of perpetrators (National Audit Office, 2006, p. 2). There is a need to move from being tough on crime to being tough on the causes of crime (Smith, 2003, pp. 49–73). Greater differentiation and acknowledgement of the characteristics of perpetrators and their parents is warranted, with further support of families in crisis needed (Arthur, 2002). For example, Ghate and Ramalla (2002), in a national evaluation of parenting programmes, found that 81% of parents attending were women and the children were overwhelmingly male. Campbell (2002) reported that a large proportion of ASBO cases involved people with obvious mental or social problems. Featherstone (2006) identified the importance of gender in child welfare and protection programmes and Lister (2006) highlighted the perceived misplaced focus upon children first and not women when dealing with reducing anti-social behaviour. To this criticism must be added the disproportional number of offenders from various race and ethnic backgrounds (Parsons et al., 2005, p. 1). Little wonder Allen (2006, p. 12) criticises schooling because it is ‘not meeting the needs of children who offend’.

Conclusion

It is important to acknowledge that for the vast majority of the population anti-social behaviour is non-existent or not a significant concern (Millie et al., 2005; Sikand, 2006, p. 2). The increase in parental responsibility legislation has imposed penalties upon parents for their children's anti-social behaviour. The sustained legislative effort of the Labour government to prevent anti-social behaviour by juveniles appears to have been effective. However, it has not removed or diminished the causes for anti-social behaviour. Until the causes are subjected to an effort equivalent to the anti-social behaviour legislation, the behaviour will continue. The appointment of Gordon Brown as Prime Minister provides an opportunity to continue the legislative efforts of New Labour while allowing for realignment of government priorities with the emerging profile of children and parents involved in anti-social behaviour.

Cases

Bradford-Smart v West Sussex CC [2002] E.L.R. 139.

London Borough of Sutton v S [2004] EWHC 2876.

R. v Board of Governors and Appeal Committee of Bryn Elian High School, Ex p. Whippe [1999] E.L.R. 380.

R v J-B [2004] EWCA Crim 14 (13 January 2004), [2004] Crim. L.R 390.

R v Lambeth LBC ex p K [2003] 6 CCLR 141.

R (AB and SB) v Nottingham City Council [2001] EWCA 235 (Admin).

Wandsworth LBC V A [2000] E.L.R. 257.