Are parental responsibility and child curfew laws consistent with the idea of children being held responsible for their actions? Can such laws be reconciled with laws and procedures within the youth justice system which seek to hold children accountable for their actions?

This assignment will seek to consider three concepts these are parental responsibility, Child Curfew law, and the Youth Justice System. It will consider whether or not the rules on child curfew and parental responsibility can be reconciled with the key principle of accountability that is found within the youth justice system. This assignment will explore all three concepts and conclude that there is a polarisation between the parental responsibility and child curfew laws on the one hand and the rules and parameters set by the Youth Justice System.

“Parental responsibility” is a key principle and key concept in child law. It permeates the Children Act 1989. This Act provides the statutory framework around which most of child law is based, and is the bedrock in which burgeoning ideas and principles relating to the upbringing of children are firmly rooted. Parental responsibility is defined in section 3(1) of the Children Act 1989 to mean:

“All the rights, duties, powers, responsibility and authority which by law a parent of a child has in relation to the child and his property”

Parental responsibility is a concept which can be encapsulated in the notion that it is those with parental responsibility who have the power and responsibility to determine how a child is brought up. Babies and young children cannot make decisions about their own upbringing because they lack the capacity to do so. In the case of older children, they may have the intellectual capacity to make decisions, but they are nonetheless likely to be dependent on adults to provide them with their basic needs. Also, while older children may have the ability to understand and make choices, they may lack the maturity and foresight to make decisions which are wise and in their own interests As Hayes and Williams point out the law “therefore throws a ring of care around children by imposing parental responsibility for their upbringing on specified persons until the children reach their adulthood ”

However, recognising that those with parental responsibility have the right to control most aspects of a child’s upbringing does not imply that the means used will always be acceptable. “The principle of law… is that parental rights are derived from parental duty and exist only so long as they are needed for the protection of the person and property of the child .” Thus parental responsibility can be challenged, and even overridden, when parents and others with parental responsibility act in violation of this principle .

Child Curfew laws are defined under section 14 of the Crime and Disorder Act 1998 These apply to all children under the age of 10 in a specific area and prevent them from meeting in specified public areas between 9pm and 6am unless accompanied by a parent or responsible adult. Local authorities can impose these curfews on the basis that such children are 'at risk' of committing offences. The steps to be taken are rather complicated, but, before issuing a notice imposing a ban for a specified period (not exceeding 90 days, the local authority must consult with the police and others it considers appropriate. This notice must specify arrangements for publicising the scheme, the hours during which the curfew is in place, the age groups included and whether different hours apply to different ages, and the date of commencement of the scheme. The Home Secretary also has to approve the scheme. The rationale for such orders is that 'unsupervised young children gathered in a public place at night can cause real alarm and misery to local communities and can encourage one another into anti-social and criminal habits '.

This may be, but it means that these orders can be made even where children in the area concerned have committed no offence and are not themselves at risk of offending. In effect, these orders penalise the 'normal' behaviour of ordinary children who are hanging about on the street, in parks, in shopping malls and so on; and it subjects them to increased surveillance by the police by defining the 'normal' as 'suspicious'. It seems unlikely that this will bode well for police/child interactions and may well increase the likelihood of offending in the future. Also such restrictions on children's freedom of movement and freedom of association may involve breaches of their human rights and civil liberties .

There has been a massive increase in use of so-called curfews for children and young people overseas since the 1990s and so it is helpful to look at experience there to assess their likely impact in the UK . First, it is clear from research in the USA that there is a lack evidence to suggest that there are links between curfews and the rate of juvenile crime. Secondly, the practice of curfews in the USA also suggests that they are used in a discriminatory way to target children from ethnic (black or Hispanic) minorities.

So now that these laws have been considered briefly it is important to compare these laws and procedures are consistent with the laws and procedures within the youth justice system which seek to hold children accountable for their actions.

Many of the changes that have taken place in the Youth Justice System do not take into account that children are incompletely developed or that they have a lack of maturity and mental incapacity and seek to hold children accountable for their actions. The law therefore fails to distinguish between adult and juvenile offenders. For example, in the sentencing of young offenders the Youth Court is principally guided by Part I of the Criminal Justice Act 1991 which focuses on the gravity of the offence and the selection of a sentence which proportionately reflects the offender's 'just deserts'. This offence-based procedure draws no distinction between the two age groups. Similarly, Home Office guidance on cautioning no longer contains the explicit encouragement of the use of formal and informal cautions for young offenders because of their youth and the harm which a criminal conviction could do to their future prospects. The reformulation in Home Office Circular 18/1994 now advises police officers that any offender, young or adult, should normally be given no more than one caution, since repeat cautions apparently bring the system into disrepute, and that cautions should never be given for serious offences .

The youth justice system appears to be working towards an era of erosion of the concept of “youth. This tough, justice-based rhetoric signifies a return to the nineteenth century punishment approach. Former Home Secretary Michael Howard's assessment that 'crime is caused by criminals ' mirrors this approach based on classicist criminology. Since all crime, according to this model, is a product of free will and volition, the appropriate response is retribution proportionate to society's condemnation, and punishment proportionate to the gravity of the crime. Hence, there is no material difference between the child offender and the adult offender since both are deemed to have rationally chosen to commit the crime and both are therefore fully accountable for their actions .

This view is very evident within the decision of the Court of Appeal and the minority in the House of Lords in R v Secretary of State for the Home Department ex parte Venables and Thompson Their approach was to justify the use of adult procedures in the punishment of two 11-year-old offenders through the heinousness of the offence, which precluded any other approach. The majority in the House of Lords preferred to follow the welfare model, as illustrated by their emphasis on the relevance of section 44 of the Children and Young Persons Act 1933 This, more recent model focuses on the underlying sociological disorders of the offender, of which crime is symptomatic, and on offering assistance or treatment to the individual as a response to their offending behaviour. Although widely criticised in the 1960s and 1970s for its non-proportionate and over-interventionist approach which undermined the autonomy and rights of the child, this model at least recognised the relevance of a child's incomplete development and his potential to reform and change within the punishment process. The potential for change in the character of the offender was the basis of the House of Lords' concern about the rigidity of the very long tariff set by the Home Secretary.

These provisions clearly are not in accordance with the concept of parental responsibility and the idea of child curfew laws. In recognition of this, and particular of the fact that the youth justice system was not sufficiently distinct from the adult justice system a report was published in November 2003 which calls for a comprehensive review of the system of youth justice. The report recognises that aspects of the youth justice system are worthy of praise and further development but identifies others that are not satisfactory. In particular, attention is drawn to the serious concerns of the United Nations Committee on the Rights of the Child, which were reported in October 2002 and reflected more recently in findings of the Joint Committee on Human Rights.

If we look at comparisons in sentencing, particularly some of those proposed in the Criminal Justice Bill, these anomalies are clear. Currently, a magistrate can send an adult to prison for a maximum of six months, yet a two-year detention and training order can be imposed on a child as young as 12 in a Youth Court.

One of the sentences for adults outlined in the Criminal Justice Bill is that of 'custody plus', where a short period in custody is followed by a longer period receiving support and supervision in the community.

An adult sentenced to custody plus will serve a minimum of two weeks in custody and 26 weeks receiving support and supervision, whereas a child, for the same offence, will serve a minimum of eight weeks in custody and receive only eight weeks of supervision and support.

The children's charity Barnardo's is calling for a comprehensive review of the law and policy for children in trouble, based on a children's human rights framework. This would provide a clear set of principles to inform law, policy and practice. A review would also need to take into account welfare legislation affecting children, such as the Children Act 1989, as well as health and education legislation and policy.

Therefore it is concluded that the youth justice system is not consistent with the concepts of parental responsibility and child curfew law and this is because it would appear that family and child law serves to protect the child and reminds itself that children are- children were as the Youth Justice System appears to want to bring children’s culpability and accountability in line of that of the adult offenders. It is argued that this is not necessarily the correct approach and that we cannot seek to protect children from adult decisions and accountability on the one hand but expose them to it on the other. Whilst it is not suggest that children should never be held accountable for their actions, it is suggested that the law should attempt to achieve a more coherent balance between the two areas of law.

Bibliography

Cases
A v UK (Human Rights: Punishment of a Child) [1988] 2 FLR 959

Gillick v West Norfolk and Wisbech Area Health Authority [1985] 3 ALL ER 402

R v Secretary of State for the Home Department ex parte Venables and Thompson [1997] 3 All ER 97

Legislation
Children and Young Persons Act 1933

Children Act 1989

Criminal Justice Act 1991

Crime and Disorder Act 1998

Home Office
Home Office Circular 18/1994

Home Office, 1997); “Home Office, No More Excuses - A New Approach to Tackling Youth Crime in England and Wales”

Journal Articles
Hibbert P, (2003) “Criminal Justice and Wasted Youth”, Law Society Gazette 100.20 (14)

Jeffs T & Smith M,(1996) 'Getting the dirtbags off the street - curfews and other solutions to juvenile crime' (1996) 53 Youth and Policy 1

Ruefle W & Reynolds K, (1995) 'Curfews and delinquency in major American cities' 41 Crime and Delinquency 347,

Books
Bainham A, (2002) “Children: The Modern Law” , Third Edition

Hayes M & Williams C, (2004) “Family Law: Principles Policy and Practice”, Butterworths, Second Edition

Rutherford, (1992) “Growing Out of Crime: The New Era”, Waterside Press,

 

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