Anti Social, Crime & Policing Bill & Children's Play
This note is provided by Fair Play for Children so as to enable examination of Part 1 of the Bill re UK obligations under the UN Convention on the Rights of the Child (UNCRC) and the legal framework for Article 31 as examined in the UN General Comment on that Article. Please refer to our Publications page where Fair Play publications are mentioned.
The Anti-Social Behaviour, Crime and Policing Bill, under discussion in the 2012-13 Session of the UK Parliament contains measures to replace the much-criticised ASBO (Anti-Social Behaviour Order). One will be Criminal Behaviour Orders which will replace the Criminal ASBO (applied to situations where someone has a criminal conviction). The Bill also envisages that Injunctions may be granted against anyone from the age of 10 if 'the court is satisfied, on the balance of probabilities, that the respondent has engaged or threatens to engage in conduct capable of causing nuisance or annoyance to any person (“anti-social behaviour”)'.
Unlike the ASBO, such injunctions will not be considered in Magistrates Courts but, where the person is under 18, in youth courts. The injunction, if it's considered appropriate to grant, will specify both what the person may not do and what will be required to be done by them. The term of the injunction must be specified and may not exceed 12 months in the case of a minor. It also has to specify who will be responsible for supervising the injunction.
There is provision for power of arrest to be attached to the injunction, in cases where, e.g. there may be violence or harm towards others.
Authorities able to apply for injunctions:
(a) a local authority,
(b) a housing provider,
(c) the chief officer of police for a police area,
(d) the chief constable of the British Transport Police Force,
(e) Transport for London,
(f) the Environment Agency, or
(g) the Secretary of State exercising security management functions within the meaning given by section 195(3) of the National Health Service Act 2006, or the Welsh Ministers exercising corresponding functions, or a Special Health Authority exercising any such functions on the direction of the Secretary of State or the Welsh Ministers.
Applications may be made without notice to the person concerned.
Breaches of injunctions - arrests without warrant may be made if a police officer has 'reasonable cause' to believe that a breach has occurred.
The relevant sections of the Bill are in Part 1, s.1-20 - link to Bill here
One of the main issues will be the level of proof required. This is a civil measure, so it will be balance of probabilities not 'beyond reasonable doubt". The Home Secretary makes a statutory statement that in her view the Bill does not conflict with UK obligations under the European Convention of Human Rights. Where the respondent (the person who is the target of an injunction), one main test must be Article 6.1 of the Convention where in all matters relating to their rights in criminal allegations and in matters where their civil rights and obligations are concerned, there must be due process - that is, clearly stated charges/plaints, consideration before an independent legal tribunal etc.
The whole issue of making the division between civil and criminal actions persists as with ASBOs, but it has to be said that civil injunctions to prevent or require actions are an established part of the legal system, and can result in criminal proceedings if broken.
Schedule 2 of the Bill deals in detail with the under-18s including Supervision Orders and (for 14+ only) Detention Orders. Supervsion Orders can contain supervision, activity, and curfew requirements.
The Bill repeats the 'witness protection' measures of existing legislation and also allows forn the lifting of reporting restrictions in the case of under 18s. This clearly conflicts with UK obligations under the UN Convention on the Rights of the Child.
Concern has been expressed about the proposals as they relate to children, and in particular to Children's Play. A letter from a number of organisations appeared in 'The Times' on 16th July 2013. Fair Play was not invited to sign this. But we agree with its statement of concerns.
An article in by Michael Reed, Chief Executive of The Children's Society in the Huffington Post of 19th June 2013 (UK edition) takes up the broader issues and raises major concerns about the appropriateness of the proposed measures.
Fair Play's concern lies at the heart of Part 1, the grounds for an injunction: 'conduct capable of causing nuisance or annoyance to any person (“anti-social behaviour”)'. We have seen Acceptable Behaviour Contracts used in wholly inappropriate situations (see our Report 'Acceptable Behaviour in Tower Hamlets?'), with a great suspicion, from what we have seen, that housing bodies and police hve used ABCs based on a desire to regulate behaviour so as to deal with complaints from e.g. neighbours even where the behaviour is pefectly reasonable for a child - e.g. being out playing.
The Bill has not provided the means for ABCs to be regulated by legislation, even though we are clear there are Article 6.1 issues in their use.
This new power of injunction will not be used in isolation and the Bill provides that behaviour for a defined preceeding period may be referred to. This will mean quite possibly that ABC information will be proffered to a youth court. Whilst it is perhaps an advance that this will happen in youth courts and not magistrates as with ASBOs where ABCs have been cited, Fair Play remains sceptical that this will not result in perfectly proper behaviour of children being banned by injunction. Anyone living in a street knows that children can cause to some people nuisance or annoyance. Will we see the injunctions used by people who have lied, as we have seen, to get "peace and quiet". Will we see injunctions granted against children as young as 10 based on complaints they have been a nuisance because they are playing, and have 'breached' their ABCs (which may have been obtained on say-so and with threat of loss of tenancy to their parents ...? Fair Play would like to see clear court and statutory guidance so normal play activity is not made a basis for 'annoyance'. And, of course, it is not just play but the whole range of children's behaviour and activity. No one supports badly-behaved children, but we also need to see inclusion, surely, of provision re mendacious and vexatious complaints by individuals using the law to secure unacceptable objectives at the expense of children.
The issues raised by this Part of the proposed Bill have major implications for UK responsibilty under The UN Convention on The Rights of The Child. Whilst Bills have to be appraised against the 1998 Human Rights Act's incorporation of articles from the European Convention, there is no such machanism as the UN CRC is not incorporated into UK law. However, that appraisal is supposed to take place, and we would want to see evidence that this has occurred.
Article 3 provides that in all actions involving children, the state has a duty to make their welfare "a primary interest". A12 provides that their voices must be heard in any proceedings which will require competent children's rights representation in such situations. A15 guarantees freedom of association and peaceful assembly, and this is a major consideration when interpreting Part 1 of the Bill as it applies to children. In times when children's health is a concern because of lack of access to play opportunities, A24 is also relevant. A37 deals with detention of children and makes it clear deprivations of liberty are last resort and for the shortest possible time.
Article 31 is 'The Right to Play', it's central to Fair Play's purposes, and the state has a duty to enable children to exercise it in ways appropriate to age. There is now a General Comment on Article 31 - GCs form a broad legal advisory base for UNCRC Articles. The A31 GC says "based on its reviews of the implementation of the rights of the child under the Convention, the Committee (on the Rights of the Child) is concerned by the poor recognition given by States to the rights contained in article 31. Poor recognition of their significance in the lives of children results in lack of investment in appropriate provisions, weak or non-existent protective legislation and the invisibility of children in national and local-level planning. In general, where investment is made, it is in the provision of structured and organized activities, but equally important is the need to create time and space for children to engage in spontaneous play, recreation and creativity, and to promote societal attitudes that support and encourage such activity." And importantly in this Bill's context, it goes on to say
"Resistance to children’s use of public spaces: Children’s use of public space for play, recreation and their own cultural activities is also impeded by the increasing commercialization of public areas, from which children are excluded. Furthermore, in many parts of the world, there is decreasing tolerance of children in public spaces. The introduction, for example, of curfews on children; gated communities or parks; reduced noise-level tolerance; playgrounds with strict rules for “acceptable” play behaviour; restrictions on access to shopping malls builds a perception of children as “problems” and/or delinquents.
Adolescents, in particular, are widely perceived as a threat by widespread negative media coverage and representation, and discouraged from using public spaces. The exclusion of children has significant implications for their development as citizens. Shared experience of inclusive public spaces by different age groups serves to promote and strengthen civil society and encourage children to recognize themselves as citizens with rights. States are encouraged to promote dialogue between older and younger generations to encourage greater recognition of children as rights holders, and of the importance of networks of diverse community spaces in local areas or municipalities which can accommodate the play and recreational needs of all children."
Regarding Government obligations, that is, what they must do in legislative and other terms, the GC is very specific, including what it must NOT allow or do: "Article 31 imposes three obligations on States parties to guarantee that the rights it covers are realized by every child without discrimination:) The obligation to respect requires States parties to refrain from interfering, directly or indirectly, in the enjoyment of the rights provided for in article 31; The obligation to protect requires States parties to take steps to prevent third parties from interfering in the rights under article 31;The obligation to fulfil requires States parties to introduce the necessary legislative, administrative, judicial, budgetary, promotional and other measures aimed at facilitating the full enjoyment of the rights provided for in article 31 by undertaking action to make available all necessary services, provision and opportunities."
Fair Play will be seeking full cognisance of this as the Bill makes its passage through Parliament. Councils have tried to get kids to sign ABCs for playing in their gardens and in their homes, so the Bill's provisions and the relevance of ABCs have to be a cause for concern. The GC on A31 may become important given its intent of advising on legal frameworks. What we want to see avoided is yet another measure which could result in children being unnecessarily or unfairly dragged into the legal system for behaviour which should not be interpreted as 'annoying' or 'nuisance'. Whilst the Bill refers to children aged 10 and over, it cannot be pretended that misuse of inapprpriate legislation will not impact on the play of younger children. Given the catastrophic decline of children's outdoor play opportunities and access in recent decades, this Bill must not add to that malaise.