Bishop of Ripon and Leeds moves amendment to protect children being named during court proceedings

On 8th January 2014, the Bishop of Ripon and Leeds moved an amendment to the Anti-social Behaviour, Crime and Policing Bill, during its Report Stage. Amendment 18 would have removed the presumption that a child will be named publicly when they are involved in youth court proceedings relating to the new anti-social behaviour orders. Following assurances from the Minister, the amendment was withdrawn.

R_LThe Lord Bishop of Ripon and Leeds: My Lords, Amendments 18, 26 and 29 set out to remove the presumption that a child will be named publicly when they are involved in youth court proceedings relating to the new anti-social behaviour orders. I am very grateful to the Children’s Society, the Standing Committee on Youth Justice and others for concentrating my thoughts on this issue.

The Bill as it is currently written suspends Section 49 of the Children and Young Persons Act 1933 for children subject to the new orders and breach proceedings. For 80 years, Section 49 has provided a presumption against revealing details of a child’s identity. This Bill means that children will be named publicly as a default unless the court makes an active choice not to name them. My amendments do not prevent the court from naming a child if it thinks it appropriate to do so. They simply mean that a child will not be named by default.

The issue of publicly naming children is an important one. It raises a number of concerns regarding rehabilitation and safeguarding and is contrary to the usual presumption of anonymity that is granted to children in criminal proceedings. The presumption to name children has significant implications for the safeguarding of children. Naming a child publicly could mean that they are subsequently targeted by individuals or gangs wishing to exploit their vulnerability. Identifying a child as having been involved in anti-social behaviour could indicate that the child may be tempted to engage in risk-taking behaviour or that they will be more susceptible to being groomed. Children with special educational needs are also more likely to be involved in ASB, making them particularly vulnerable to exploitation.

Naming, thereby shaming, children can hinder the successful rehabilitation of those who wish to make a fresh start. It can be counterproductive by prolonging the problems that children have in re-engaging positively with their community. It can also make it extremely difficult for professionals to obtain services instrumental in a child’s rehabilitation. There is little evidence that identifying a child is effective as a deterrent.

In our debates yesterday we were concerned with the Government’s very positive response to the need for education, health and care plans for children in trouble. I believe that this element of this Bill works in the opposite direction. In the age of the internet and social media, details of a child’s identity are indelible once they are revealed. Children should not have this stamp on them from such a young age because it can affect their future ability to get a job, obtain housing and contribute to society. Naming and shaming through ASBOs has criminalised, stigmatised and negatively labelled young people and has in some cases perpetuated problems rather than helping to resolve them.

The Joint Committee on Human Rights has expressed concern about the impact of reporting on a child’s right to privacy in its pre-legislative scrutiny report. Naming and shaming contravenes the anonymity usually granted to children in criminal proceedings and denies the right to privacy in the UN Convention on the Rights of the Child. The Local Government Association has also expressed concern, especially about a child who receives or breaches an IPNA but who has not actually committed a criminal offence.

Magistrates and district judges sitting in the youth court are not accustomed to considering whether to impose reporting restrictions. That is because the youth court operates under a general presumption of anonymity. Section 39 of the Children and Young Persons Act will allow a court to impose anonymity on the new ASB proceedings. However, because the court is not used to having to consider whether anonymity should apply, it is likely that children will be named without the court even considering whether a Section 39 application should be made.

I therefore want to press the Minister for some guidance. Will he consider discussing with magistrates and district judges sitting in the youth court the need to consider a Section 39 order in each case where ASB proceedings are taking place? How will they ensure that the youth court considers whether to impose a Section 39 order in every case of a child involved in ASB proceedings? The guidance for front-line professionals accompanying the Bill should advise them to make a Section 39 application to the court when they believe that a child’s details should remain anonymous. Privacy for a child affects him or her not just at that moment but for the rest of their lives. It is something that we ought to take great care about removing. I beg to move.

Lord Taylor of Holbeach: My Lords, this again has been a good debate on an important issue. Though it is a small part, it is an important part of these provisions. I thank the right reverend Prelate the Bishop of Ripon and Leeds for presenting these amendments for our discussion.

As the House will know, the Government do indeed believe that there is a need for reporting restrictions in respect of under-18s in certain cases, where it is both necessary and proportionate to allow for effective enforcement of an injunction or criminal behaviour order. This will enable communities to play their part in ensuring that the injunction and criminal behaviour order are effective in tackling anti-social behaviour by alerting the police if the respondent or offender breaches their conditions. Publicising the injunction and the order in certain cases will provide reassurance and increase public confidence in agencies’ willingness and in their ability to take action against perpetrators of anti-social behaviour. Potential perpetrators will be deterred from committing anti-social behaviour due to reporting. So while I understand the sentiment behind these amendments, I believe that there is a strong case for maintaining the default position under Clauses 17, 22 and 29. This mirrors the current position for anti-social behaviour orders.

However, all these legitimate aims must be weighed against the effect on the young person of making it known to their community that they have been subject to a formal court order, albeit a civil one. That is why, as we clarified in Committee, Section 39 of the Children and Young Persons Act 1933 gives the court the discretion to prohibit publication of the injunction or order. The courts are very well used to making such sensitive decisions, having been dealing with such cases since the reporting arrangements for ASBOs were changed by the Serious Organised Crime and Police Act 2005. The consultation with the local youth offending team will play an important role here. In this and other respects, the Bill has made changes that enhance safeguards in respect of the rights of young people, ensuring that they are always properly considered. The Bill provides that the youth offending team must be consulted before an application may be made for an injunction or a criminal behaviour order. The team will give valuable insight into the effect reporting would have on a young person, and allow more carefully informed decision-making by the applicants and courts on this issue.

I thank the noble and learned Lord, Lord Hope of Craighead, for his contribution to this debate. We are retaining the position as it applies to ASBOs as introduced by the previous Government. We would not expect any change of practice or frequency, as the relevant legislation was passed in 2005. We are not looking for any increase or decrease in the incidence of reporting. This is a matter for practitioners on the one hand and for the courts on the other. Perhaps I can reinforce the role of the youth courts. It is worth pointing out that once these powers are in place all applications for injunctions will be heard in the youth courts, which is not currently the situation for ASBOs. The youth courts are best placed for making such decisions and so this will ensure that the right outcomes on reporting, for the offender and the community, are achieved.

On this last point, during its pre-legislative scrutiny the Home Affairs Select Committee said,

“we are happy to leave the decision not to name a young person to the discretion of the judge”.

We agree that this is appropriately a matter of judicial discretion. I hope my noble friend Lady Hamwee also accepts that point. There is a wealth of case law on this issue which has upheld the legislation that allows for the publicising of ASBOs made against under-18s. The case law makes it clear that the reporting is sometimes necessary and gives guidance on the factors that should be considered. It demonstrates that the discretion given to courts can be exercised reasonably, proportionately and in a way which respects a young person’s human rights. I can help the noble Lord, Lord Rosser, on this. Our draft guidance makes clear that local agencies must consider that it is necessary and proportionate to interfere with the young person’s right to privacy, and take account of whether it is likely to affect a young person’s behaviour, with each case decided carefully on its own facts. There is a paragraph in the draft guidance on page 26. I do not propose to read it out but I hope that noble Lords will study it and find it satisfactory.

The right reverend Prelate the Bishop of Ripon and Leeds asked whether we would give guidance to the courts. The noble Lord, Lord Rosser, said that of course the Government will not give guidance to the courts. I am sure that the noble and learned Lord, Lord Hope of Craighead, would be happy that the Government are not seeking to give guidance to the courts. However we can and will give guidance to the police, to councils and to other practitioners on this issue. It is for the senior judiciary to give guidance to magistrates in the youth courts. However, I undertake to draw the attention of the Lord Chief Justice to this debate and to the concerns that have been raised in it by noble Lords. I will also work with the Judicial College on training for magistrates.

I will not go through the relationship of this debate with debates on ASBOs but I remind noble Lords that we must take into account the impact of lifting reporting restrictions on the young person. The youth court is well qualified to do that but we need to balance it against the needs of victims and the communities in which they live. For this reason, I am confident that the reporting of under-18s will be carefully considered, with all relevant factors weighed in deciding whether it is necessary to publicise an order against a young person. I therefore hope that the right reverend Prelate will feel reassured by the comments that I have been able to make and withdraw his amendment.

The Lord Bishop of Ripon and Leeds: My Lords, I am grateful to the Minister for that response and I am at least partially reassured by what he has said, particularly in the promises to discuss with the judiciary and bring this debate to their attention, as well as emphasising the guidance to the professionals involved in such cases. I am grateful to those noble Lords who have spoken in the debate and I emphasise again the point made by the noble Earl, Lord Listowel, on just how damaged the children involved in these cases can be. They often feel deeply worthless.

Whether we are here as legislators or in the actual practice of the courts there is a need for us all to be aware, yes, of the needs of the community, which are very much at the fore of the discussion of IPNAs, but also of the needs of the child and the effect that will have on the community. If those needs of the child are not met then the damage to the community in the future can be much greater. However, I am at least partially reassured and so beg leave to withdraw the amendment.

(via Parliament.uk)