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Securing responsibility, achieving parity? The legal support for children leaving custody

Published online by Cambridge University Press:  02 January 2018

Kathryn Hollingsworth
Kathryn Hollingsworth*
Affiliation:
Newcastle University*
*
'Kathryn Hollingsworth, Professor in Law, Newcastle Law School, Newcastle University, Newcastle, NE1 7RU, UK. Email: kathryn.hollingsworth@newcastle.ac.uk
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Abstract

This paper examines the legal support available to incarcerated children when they leave custody. It argues that the current support provided to custody-leavers – which includes both ‘resettlement’ (provided by youth justice agencies) and duties owed to some custody-leavers under Pt III of the Children Act 1989 – may achieve criminal justice aims (such as preventing re-offending) but does not adequately protect the status and rights that all custody-leavers have qua child. When the child leaves custody her primary status is child, not offender, and therefore it is argued here that she should be entitled to the same legal rights as analogous groups of children; namely, care-leavers. It is suggested that the reason why care-leavers and custody-leavers are comparable groups to whom parity in legal rights should be accorded is because the four types of responsibility that underpin the state's obligations to care-leavers (reparatory, assumed, generational and equity-based) apply equally to custody-leavers.

Type
Research Article
Information
Legal Studies , Volume 33 , Issue 1 , March 2013 , pp. 22 - 45
Copyright
Copyright © Society of Legal Scholars 2013

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Footnotes

*

My thanks to the two anonymous reviewers and to the following people who have read, commented on, and discussed with me earlier versions of this paper: Kevin J Brown, Richard Collier, Jill Craigie, Jennifer Driscoll, Stewart Field, Patricia Gray, Simon Halliday, and Aoife Nolan.

References

1. The proven re-offending rate for those sentenced to custody is 71.9%. Ministry of Justice Re-offending of Juveniles: Results from the 2009 Cohort (2011).

2. Hagan, J and McCarthy, B Mean Streets. Youth Crime and Homelessness (Cambridge: Cambridge University Press, 1997)CrossRefGoogle Scholar; Glover, J and Clewett, N No Fixed Abode: The Housing Struggle for Young People Leaving Custody in England (London: Barnardo's, 2011)Google Scholar; Her Majesty's Inspectorate of Prisons (HMIP) Resettlement Provision for Children and Young People: Accommodation and Education, Training and Employment (2011) esp p 9.

3. HMIP, above n 2; OFSTED Transition Through Detention and Custody: Arrangements for Training and Skills for Young People in Custodial or Secure Settings (2010); HM Inspectorate of Prisons Training Planning for Children and Young People (2010); Lanksey, C Promise or compromise? Education for young people in secure institutions in England’ (2011) 11 Youth Justice: An International Journal 47 Google Scholar.

4. HM Inspectorate of Prisons, above n 3; OFSTED, above n 3.

5. Hagell, A The Mental Health of Young Offenders (London: Mental Health Foundation, 2002)Google Scholar; HM Government Healthy Children, Safer Communities: A Strategy to Promote the Health and Well-being of Children and Young Persons in Contact with the Youth Justice System (2009).

6. Jacobson, J et al Punishing Disadvantage: a Profile of Children in Custody (London: Prison Reform Trust, 2010)Google Scholar; Youth Justice Board Youth Resettlement: A Framework for Action (2007). See generally Goldson, B Vulnerable Inside: Children in Secure and Penal Settings (London: The Children's Society, 2002)Google Scholar.

7. Taylor, C Young People in Care and Criminal Behaviour (London: Jessica Kingsley Publications, 2006)Google Scholar; Biehal, N et al Moving On (London: HMSO, 2005)Google Scholar; I Sinclair and I Gibbs Quality of Care in Children's Homes (University of York, 1996). Department of Health Social Services Inspectorate ‘… When Leaving Home is also Leaving Care An Inspection of Services for Young People Leaving Care (1997); Department of Health Me, Survive, Out There? – New Arrangements for Young People Living in and Leaving Care (1999); Stein, M Research review: young people leaving care (2006) 11 Child and Family Social Work 273 CrossRefGoogle Scholar; Wade, J and Dixon, J Making a home, finding a job: investigating early housing and employment outcomes for young people leaving care’ (2006) 11 Child and Family Social Work 199 CrossRefGoogle Scholar.

8. On custodial sentences, see Powers of the Criminal Court Act 2000, ss 90, 91 and 100 and the Criminal Justice Act 2003, ss 226 and 228. For secure remand, see Bail Act 1976, s 4, Sch 1 and Children and Young Persons Act 1969 (CYPA 1969), s 23 respectively and the amendments proposed in the Legal Aid, Sentencing and Punishment of Offenders Bill (Legal Aid Bill), cl 97 on proposals to amend the system of remand for children.

9. Children Act 1989 (CA 1989), s 31 (a compulsory care order) and s 20 (with the consent of the child's parents).

10. This is only true for children under 16, who (exceptionally) can also be subject to criminal proceedings. See generally McDiarmid, C Welfare, offending and the Scottish children's hearing system (2005) 27 Journal of Social Welfare and Family Law 31 CrossRefGoogle Scholar and Sutherland, Ee The child in conflict with the law in Cleland, A and Sutherland, Ee (eds)Children's Rights in Scotland (Edinburgh: W Green, 2009)Google Scholar.

11. The term ‘state care’ is used in a broad sense to capture both the welfare and criminal routes.

12. Prior to the 1989 Act, care orders could be obtained within the juvenile (now youth) court where the child had been convicted of a criminal offence (the ‘offence ground’) or imposed by any court as a form of punishment, in circumstances where imprisonment was available for adults. See CYPA 1969, ss 1(2)(f) and 7(7). On the impact of the CA 1989 on the Youth Justice System see Ball, C Criminal Justice Act 1991: Pt 5: young offenders and the Youth Court (1992)Crim LR 277 Google Scholar.

13. In January 2011, 160 of the 1945 young people in custody were in local authority run children's homes, the rest were in secure training centres (STCs) or young offender institutions (YOIs). See.

14. However, although generalities can be observed there remains great diversity even within each group in terms of the backgrounds and the circumstances that led to care/custody, the length of stay and the type of placement. Taylor, above n 7, pp 16 and 22.

15. No central data is held by the Youth Justice Board (YJB) on the numbers of children in custody who have been or are ‘looked after’ (ie subject to a s 20 or s 31 order under CA 1989). However, in the sample of children in a recent HMIP report approximately a quarter of children in Young Offender Institutions (which house 15–18-year-old teenage offenders) had spent time in care. See HMIP The Care of Looked After Children in Prison: A Short Thematic Review (May 2011) p 9. The YJB estimates that 40–49% of children in custody have been looked after at some point in their lives.

16. Above n 9. For the legal definition of a ‘looked after’ child see CA 1989, s 22.

17. CA 1989, ss 22–23ZB, Sch 2.

18. CA 1989, ss 23A–24D.

19. Different types of support are owed depending upon whether the child is an ‘eligible’ child (a 16- or 17-year-old who has been looked after by the local authority for more than 13 weeks, which began after she was 14 and ended after she was 16); a ‘relevant’ child (not currently ‘looked after’, but who before ceasing to be ‘looked after’ was an eligible child); and a ‘former relevant’ child (a person aged 18 or over who was a relevant or eligible child when she turned 18). See generally Wise, I et al Children in Need: Local Authority Support for Children and Families (London: Legal Action Group, 2011) ch 7Google Scholar.

20. Department of Health People Like Us? The Report of the Review of the Safeguards for Children Living Away from Home (1997); Welsh Assembly New Arrangements for Young People Leaving and Living in Care (1999); and Department of Health, above n 7.

21. Who could be moved out of care and onto social welfare benefits (paid for by central Government). See Hansard HC Debs, col 366, 21 June 2000.

22. Above n 17 and 18.

23. For example, accommodation, education, training, employment, practical skills, health, financial support, and the maintenance of family and social relationships.

24. R (on the application of J by his Litigation Friend MW) v Caerphilly County Borough Council[2005] EWHC 586 (Admin), [2005] 2 FLR 860.

25. Ibid, para 45 per Munby J. See also R (on the application of AB) v Nottingham[2001] EWHC Admin 235, [2001] 3 FCR 350 and R (on the application of A) v Lambeth BC[2010] EWHC 2439 (Admin).

26. Children with disabilities who attend residential schools and unaccompanied asylum seekers were discussed but ultimately these groups were excluded too (unless, like custody-leavers – see below – they otherwise meet the statutory criteria). House of Commons Research Paper 00/63 The Children Leaving Care Bill [HL]. Custody leavers were also ignored in the Commons second reading: HC Debs, 21 June 2000.

27. R (Howard League for Penal Reform) v Secretary of State for Home Department[2002] EWHC 2497 (Admin), [2003] 1 FLR 484. It was held here that local authorities' duties to children under the CA 1989 continue even if the child is in a YOI.

28. Legal Aid Bill, cl 97.

29. The actions of local authorities can, however, have an indirect impact on the release date, as K v Manchester City Council[2006] EWHC 3164 (admin), (2007) 10 CCL Rep 87 – discussed, below n 76 and surrounding text – demonstrates.

30. Local authorities bear the costs associated with a child, being a ‘child in need’ or a ‘looked after child’, for example, the cost of visiting the child, but the day to day costs come from the central government budget. This will change in relation to remand (the cost of which is being devolved to local authorities).

31. The creation of a financial incentive to keep children out of custody is also the purpose of the pathfinder reinvestment programme discussed below, n 56 and surrounding text.

32. Taylor, above n 7.

33. This is evident from the aims underpinning the Government's expansion of youth justice based resettlement provision for custody-leavers (described below, n 37ff and surrounding text), which mirror those upon which the leaving-care provisions are based (identified in the relevant regulations and guidance for the CA 1989), and see the references in nn 1–7.

34. Above n 15.

35. Though of course, the experience of custody can result in increased vulnerabilities, particularly where a punitive regime is used. See again the references in nn 1–6.

36. On the varying images of childhood and children see inter alia Fionda, J Devils and Angels: Youth Policy and Crime (Oxford: Hart Publishing, 2005)Google Scholar; Jenks, C,Childhood (London: Routledge, 1996)Google ScholarPubMed; James, A and Jenks, C Public perceptions of childhood criminality’ (1996) 47 British Journal of Sociology 325 CrossRefGoogle ScholarPubMed; Jenks, C Sociological perspectives and media representation of childhood in Fionda, J (ed)Legal Concepts of Childhood (Oxford: Hart Publishing, 2001)Google Scholar; King, M and Piper, C How the Law Thinks About Children (Aldershot: Gower, 1995)Google ScholarPubMed; James, A and Prout, A Constructing and Reconstructing Childhood: Contemporary Issues in the Sociological Study of Childhood (London: Falmer Press, 1997)Google Scholar.

37. YJB National Standards for Youth Justice Services (London: YJB, 2010)Google Scholar standards 9 and 10, and the Resettlement and Aftercare Provisions (RAP, which provided funding to 59 areas for increased resettlement support), and RESET (a voluntary scheme established by the charity RAINER). See ARC and University of Salford ‘RESET evaluation – final report’ (London: Rainer, 2008); YJB Evaluation of Resettlement and Aftercare Provision (London: YJB, 2010)Google Scholar.

38. This followed promises made in the Youth Crime Action Plan (YCAP) in 2008 to provide an additional £6 million for resettlement (Home Office, Ministry of Justice, Cabinet Office, Department for Children, Schools and Families Youth Crime Action Plan 2008 (London: 2008)). In England, IRS extended to 100 out of 132 YOTs ( YJB Integrated Resettlement Support: Framework for 2009–11 (London: YJB, 2010)Google Scholar); in Wales six schemes are in place (All Wales Youth Offending Strategy: Delivery Plan 2009–2011 (Welsh Assembly Government/YJB) priority 3, p 11ff).

39. Eg memoranda of understanding are in place between the YJB and YMCA, and the YJB and the Foyer Foundation. Also see YCAP, above n 38, and YJB Integrated Resettlement Support: Management Guidance (London: YJB, 2010)Google Scholar.

40. YJB, above n 39.

41. YCAP, above n 38, para 5.10, p 59.

42. YJB, above n 38.

43. Ibid; YCAP, above n 38.

44. Gray notes that the result of this is that ‘young people's resettlement problems have been individualised and pathologised and equated with correcting personal shortcomings in attitudes and social skills’. P Gray ‘Challenging the individualised approach to young peoples' resettlement needs’ (2010) ECAN Bulletin: Howard League of Penal Reform 11.

45. For example, a right based on being a ‘child in need’ under CA 1989. This problem is not confined to the youth justice system: the link between the provision of welfare for children and desired (social) goals or outcomes has historically underpinned much policy relating to children in England and Wales. See Williams, J Incorporating children's rights: the divergence in law and policy (2007) 27 LS 261 at 264Google Scholar.

46. The DTO is a custodial sentence; the first half is served in custody, the second half in the community under supervision.

47. Young people are more likely to engage with voluntary services that they have chosen for themselves. See ARC and University of Salford, above n 37, p 58.

48. To be discussed in detail in the next section.

49. On the occupational culture within YOTs see Burnett, R and Appleton, C Joined-up services to tackle youth crime’ (2004) 44 Brit J Criminol 34 CrossRefGoogle Scholar; and T Ellis and I Boden ‘Is there a unifying professional culture in youth offending teams? A research note’ (2005) British Society of Criminology 2004 (vol 7) Conference Proceedings.

50. On the difficulties of inter-agency and partnership working see Souhami, A Transforming Youth Justice: Occupational Identity and Cultural Change (Cullompton, Devon: Willan, 2007)Google Scholar and on the specific problems relating to resettlement rights see the discussion, below n 98, and surrounding text.

51. YJB (2010), above n 38, p 21.

52. ARC and University of Salford, above n 37. On YOT workers' ability to supervise custody-leavers see Hazel, N et al Detention and Training: Assessment of the Detention and Training Order and Its Impact on the Secure Estate of England and Wales (London: Youth Justice Board, 2002) p 75 Google Scholar.

53. HM Treasury Spending Review 2010.

54. See ‘YJB chief fears impact of fall in spending’Children and Young People Now 8 March 2011 (there are a 29% reduction in funding to YOTs from central Government via the YJB, and there are likely to be similar cuts in the funding from local authorities) available at; and House of Commons Committee of Public Accounts The Youth Justice System in England and Wales: Reducing Offending by Young People Twenty-first Report of Session 2010–11; HC 721 (2011) para 22.

55. For example, the requirement on local authorities to produce a Children and Young People's Plan, and the plans to remove the statutory basis of Children's Trusts Boards. Glover and Clewett, above n 2, p 14.

56. Ministry of Justice Breaking the Cycle: Effective Punishment, Rehabilitation and Sentencing of Offenders (2010).

57. For example, the introduction of ‘gang injunctions’. On some of the problems with payments by results, see Padfield, N The Green Paper “Breaking the Cycle: Effective Punishment, Rehabilitation and Sentencing of Offenders” (2011)Archbold Review 6 Google Scholar.

58. YCAP, above n 38, para 5.11, p 59.

59. PSO 2300 and PSI 28/2009.

60. Department of Children, Schools and Families Working Together to Safeguard Children: A Guide to Inter-agency Working to Safeguard and Promote the Welfare of Children (2010) para 11.36 ff.

61. On the YJB's current policy and practice regarding resettlement see above n 37. On targets and performance indicators see YJB Corporate Plan 2008–11 and Business Plan 2008–09. Also see, for example, YJB Suitable, Sustainable, Supported: A Strategy to Ensure Provision of Accommodation for Children and Young People who Offend (London: YJB, 2006)Google Scholar.

62. Even where compliance with performance indicators is secured, this can have unintended and perverse consequences. See E Genders and E Player ‘The commercial context of criminal justice: prison privatisation and the perversion of purpose’ (2007) Crim LR 513 and the references therein.

63. Ministry of Justice and YJB Strategy for the Secure Estate for Children and Young People in England and Wales: Plans for 2011-12-2014/15 Consultation Document (2011) para 100.

64. The impact is already being observed by Barnardo's. See Glover and Clewett, above n 2, p 14.

65. For example, standard 10.23 requires only that the YOT officer ‘address’ accommodation, education etc, and 10.24 requires arrangements to be made to ‘access as necessary’ accommodation etc services.

66. To date, the guidance has not been the subject of judicial adjudication.

67. A legal foundation to a duty does not guarantee compliance, but it does provide scope for an affected individual to gain a remedy through judicial review.

68. CA 1989, s 17. See further Wise et al, above n 19.

69. CA 1989, s 22.

70. Above n 19.

71. CYPA 1969, s 23 and Driscoll, J and Hollingsworth, K Accommodating children in need: R (M) v Hammersmith and Fulham London Borough Council ’ (2008) 20 CFLQ 522 at 534ffGoogle Scholar.

72. The House of Commons Children, Schools and Families Committee recommended in 2009 that these children retain their looked after status while incarcerated, but this has not been included in the Legal Services Bill. See House of Commons Children, Schools and Families Committee Looked-after Children: Third Report of the 2008–09 Session Volume 1, HC 111-I (2009) para 58.

73. CA 1989, s 23ZA and SI 2010/2797 (England) and SI 2011/699 (Wales). See further Wise et al, above n 19, para 5.92.

74. Fortin, J Children's Rights and the Developing Law (Cambridge: Cambridge University Press, 2009) p 567 CrossRefGoogle Scholar.

75. See below.

76. Above n 29.

77. Specifically, K wished to be fostered away from his home. See Hollingsworth, K The rights of children leaving custody: K v Parole Board and K v Manchester City Council ’ (2007) 29 Journal of Social Welfare and Family Law 163 CrossRefGoogle Scholar.

78. Department of Health Framework for the Assessment of Children in Need and Their Families (2000).

79. Hollingsworth, above n 77.

80. Children's services also focus on risk rather than need when carrying out s 17 assessments; but risk of abuse and neglect, not offending. Masson, J The Climbie Inquiry – context and critique’ (2006) 33 Journal of Law and Society 221 at 237CrossRefGoogle Scholar.

81. On the importance of the ‘child in need’ assessment as a gate-keeping tool for local authorities see Cowan, D On need and gatekeeping –R (G) v Barnet London Borough Council; R (a) v Lambeth London Borough Council; R (W) v Lambeth London Borough Council (2004) 16 CFLQ 331 Google Scholar.

82. Piper, C Investing in Children: Policy, Law and Practice in Context (Cullompton: Willan Publishing, 2008)Google Scholar pp 136–137 referring to the House of Lords decision in R (G) v Barnet Borough Council[2003] UKHL 57, [2004] 1 FLR 454.

83. Above n 19, para 4.38ff.

84. Bainham, A Children: The Modern Law (Bristol: Jordan Publishing Ltd, 2005) p 416 Google Scholar. Limited resources mean that local authorities focus on high risk cases stemming from clear statutory duties, rather than the more nebulous ‘general’ duty in CA 1989, s 17.

85. Ibid, p 425.

86. For example to be ‘looked after’.

87. R (G) v Barnet London Borough Council; above n 82, per Lord Nicholls at para 19 referring to R v Northavon District Council, ex parte Smith[1994] 2 AC 402 at 406. See Cowan, above n 81.

88. CA 1989, s 20(1)(a)–(c). Most would fall within para (c): ‘the person who has been caring for him being prevented (whether permanently or not and for whatever reason) from providing him with suitable accommodation or care’.

89. This is true for all children, but children seeking asylum and children in trouble with the law have been particularly affected.

90. Children accommodated under s 17 are specifically excluded from the definition of ‘looked after’ child under CA 1989, s 22. See R (on the application of H) v Wandsworth London Borough Council[2007] EWHC 1082 (Admin), [2007] 2 FLR 822.

91. R (on the application of M) v London Borough of Hammersmith and Fulham[2008] UKHL 14, [2008] 1 WLR 535.

92. R (on the application of G) v London Borough of Southwark[2009] UKHL 26 at [28], [2009] 1 WLR 1299.

93. R (on the application of S) v Sutton London Borough Council[2007] EWCA Civ 790, (2007) 10 CCL Rep 615.

94. Southwark Borough Council v D[2007] EWCA Civ 182, [2007] 1 FCR 788.

95. Above n 92, and Secretary of State for Children, Schools and Families and the Secretary of State for Communities and Local Government Provision of Accommodation for 16 and 17 Year Old Young People who may be Homeless and/or Require Accommodation (2010).

96. Unless the fully informed, mature child does not want to be. See Baroness Hale, above n 91, summarising the position in R (on the application of L) v Nottinghamshire County Council[2007] EWHC 2364; R (on the application on D) v Southwark London Borough Council[2007] EWCA Civ 182, [2007] 1 FLR 2181; R (on the application of S) v Sutton Borough Council[2007], above n 93.

97. YOTs may be based within children's services but they are operationally distinct.

98. [2010] EWHC 907, [2010] 2 FLR 968.

99. Although TG was not a custody-leaver he was under the supervision of the YOT.

100. The case concerned a ‘YOS’ worker (youth offending services); this simply reflects the way in which different local authorities organise and name their services. It performs the same function as a YOT.

101. This provision places a duty on a local authority to provide interim accommodation for those whom the authority has reason to believe may be homeless, eligible for assistance and in priority need (set out in s 189(2)). Art 3 of the Homelessness (Priority Need for Accommodation) (England) Order 2002 (SI 2002/2051) extends the category of priority need to a person aged 16 or 17 who is not a relevant child for the purposes of CA 1989, s 23A nor one to whom a local authority owes a duty to provide accommodation under CA 1989, s 20.

102. For a full discussion of this case see Driscoll and Hollingsworth, above n 71.

103. ‘The YJB does not hold accurate data on the number of young people registered as of no fixed abode on release from custody’. Hansard, HC, col 722W, 30 November 2010.

104. See Gray, P Youth custody, resettlement and the right to social justice’ (2011) 11 Youth Justice: An International Journal 235 CrossRefGoogle Scholar.

105. Art 40 requires that the child in conflict with the law should be treated in a way which reinforces the ‘desirability of promoting the child's reintegration and the child's assuming a constructive role in society’; and see the Beijing rules: ‘79 – All juveniles should benefit from arrangements designed to assist them in returning to society, family life, or employment after release … 80 – Competent authorities should provide or ensure services to assist juveniles in re-establishing themselves in society and to lessen prejudice against such juveniles. These services should ensure, to the extent possible, that the juvenile is provided with suitable residence, employment, clothing, and sufficient means to maintain himself upon release in order to facilitate successful reintegration . . .’. See also Gray, above n 104.

106. Hollingsworth, K Protecting children's rights at the margins of youth justice’ (2008) 8 Youth Justice: An International Journal 229 CrossRefGoogle Scholar.

107. For example, the Government pledges to ‘…put the interests of those young people who have been badly let down by the system first and foremost, and we will make the necessary investment now to secure their future’, Second reading of the Children (Leaving Care) Bill 2000, HC Debs, col 365, 21 June 2000. See also Taylor, above n 7, p 13.

108. The Government response to the Health Committee's report, above n 7, para 147: ‘No ordinary parent would turn their children out to fend for themselves at 16 and the Government will be laying great emphasis on the parenting responsibilities of local authorities in taking forward its national campaign . . .’.; Lord Hunt's introduction of the Bill on second reading, HL Debs, col 1156, 7 December 1999: ‘we believe that local authorities' responsibilities towards young people in and leaving care should correspond more closely to those of responsible parents (emphasis added) …young people in and leaving care should be able to expect this from their corporate parent’; and Peter Brand, second reading of the Children (Leaving Care) Bill 2000, HC Debs, col 381, 21 June 2000.

109. Department of Health (1999), above n 7, p 5 and John Hutton, Minister of Health, second reading, HC Debs, col 358, 21 June 2000: These ‘are children of our country, the children of all of us’.

110. Yvette Cooper, Parliamentary Under Secretary for Health, HC Debs, col 418, 21 June 2000.

111. Above n 34, and surrounding text.

112. That is, it gives rise to a right to particular support. MacCormick, N Children's rights: a test case for theories of rights’ (1976) 62 Archiv für Rechts und Sozialphilosophie 305 Google Scholar.

113. Brand, above n 108. On the liability of local authorities in tort law, where they have assumed responsibility for the child, see Barrett v Enfield LBC[2001] 2 AC 550 and Phelps v Hillingdon LBC[2001] 2 AC 619 and see Nolan, D The liability of public authorities for failing to confer benefit’ (2011)LQR 260 Google Scholar.

114. CA 1989, ss 3, 33(3)(a).

115. Department of Health Guidance emphasises that regardless of the legal basis, the local authority adopts of the role of the parent of the child.

116. Hazel et al, above n 52, report that 75% of children on DTOs return home.

117. 11% continue to live with their families even though they are ‘looked after’. Taylor, above n 7, p 22.

118. It is mandatory where the child is under 16 and the relevant condition is met (that the order is desirable in order to prevent a repetition in the behaviour). See Crime and Disorder Act 1998, s 8, and further (inter alia) Hollingsworth, K, ‘Responsibility and rights: children and their parents in the youth justice system’ (2007) 21 IJLPF 191 Google Scholar and Arthur, R Punishing parents for the crimes of their children (2005) 44 The Howard Journal of Criminal Justice 233 CrossRefGoogle Scholar.

119. Though this is relevant in how the duties are met.

120. CA 1989, s 22, Sch 2.

121. Only if they have that status already, as described, above n 72, and surrounding text.

122. For the intended purposes of sentencing for young people, see Criminal Justice and Immigration Act 2008, s 9 (nb this provision has not yet been brought into force) and Sentencing Council Guidelines Overarching Principle for Sentencing Juveniles: Definitive Guidelines (2009).

123. The choice to provide welfare support to repair earlier harm may be underpinned by both the private benefit to the child and the wider public benefit (for example, where it is accepted that neglected children may be more likely to develop health problems or commit crime). This point has been made by Nolan in the context of liability of public authorities in tort law: Nolan, above n 113, p 269.

124. The indirect outcomes are the predictable secondary effects of punishment. On the importance of understanding penal responses beyond formal state punishment as part of the pains of punishment see Harding, C and Ireland, R Punishment: Rhetoric, Rule and Practice (London: Routledge, 1989)Google Scholar.

125. King and Piper, above n 36, and Piper, C Divorce reform and the image of the child’ (1996) 23 JLS 364 CrossRefGoogle Scholar.

126. Which can extend to criminal liability. Children and Young Persons Act 1933, s 1.

127. Either directly (for example, where harm is caused to the child while in the care of the state, see for example R Waterhouse Lost in Care, Report of the Tribunal of Inquiry into the Abuse of Children in Care in the Former County Council Areas of Gwynedd and Clwyd since 1974 HC Session 1999–00 201 (2000)) or because the state failed to intervene to protect children from the harm caused by their carers, see for example Z v United Kingdom[2001] 2 FL 612, (2002) 34 EHRR 3. See further O'Cinneide, C A modest proposal: destitution, state responsibility and the European Convention on Human Rights’ (2008) 5 EHRLR 583 Google Scholar.

128. This is a blunt description of the liberal underpinning of the criminal law, and is not wholly accurate in describing that system in England and Wales in 2011. See further Ashworth, A and Zedner, L Defending the criminal law: reflections on the changing character of crime, procedure and sanctions’ (2008) Criminal Law and Philosophy 21 Google Scholar.

129. The abolition of doli incapax, both the presumption (Crime and Disorder Act 1998, s 34) and the defence (see R v JTB[2009] UKHL 20, [2009] 1 AC 1310), removed any assessment of developmental capacity from criminal liability, though traces of doli incapax remain in Art 6 ECHR and the requirement for effective participation as part of a fair trial. See R (TP) v West London Youth Court[2005] EWHC 2583 (Admin), [2006] 1 WLR 1219. See further Law Commission Unfitness to Plead: A Consultation Paper (2010) ch 8.

130. Hudson, B Punishment, poverty and responsibility: the case for a hardship defence’ (1999) 8 Social and Legal Studies 583 at 584CrossRefGoogle Scholar. Age is considered when assessing a person's ability to determine risk in relation to the mens rea of recklessness. See R v G[2003] UKHL 50, [2004] 1 AC 1034.

131. For example, that one may be constrained by poverty, homelessness, gender, age and so on. See Garland's distinction between agency and freedom. Garland, D “Governmentality” and the problem of crime: Foucault, criminology and sociology (1997) 1 Theoretical Criminology 173 at 197CrossRefGoogle Scholar.

132. Cane, P Responsibility in Law and Morality (Oxford: Hart Publishing, 2002)Google Scholar.

133. Sufficient to be deemed fit to plead (though nb these factors may also be relevant to the availability of a defence, such as duress). See Brudner, A Punishment and Freedom: A Liberal Theory of Penal Justice (Oxford: Oxford University Press, 2009)CrossRefGoogle Scholar.

134. Ibid.

135. Criminal Justice and Immigration Act 2008, s 9 (this section is not yet in force, but it broadly captures the existing aims). See also the Sentencing Guidelines Council, above n 122.

136. Blameworthiness and culpability are used synonymously here, though others draw more nuanced distinctions between the concepts. Hudson, above n 130. Nb dispute exists between criminal law theorists as to whether retributivism should be moral or legal. For a discussion of the differences, see Brudner, above n 133.

137. Hudson questions the extent to which restrictions on freedom of choice can be captured in a sentencing regime which leaves little discretion for sentencers. She has instead proposed a hardship defence for those who have fewer choices because they live in severe deprivation. See above n 130.

138. For a moral retributivist account see von Hirsch, A Proportionate sentences for juveniles: how different than for adults? (2001) 3 Punishment and Society 221 Google Scholar and Zedner, L Sentencing young offenders in Ashworth, A and Wasik, M (eds)Fundamentals of Sentencing Theory: Essays in Honour of Andrew von Hirsch (Oxford, Clarendon Press, 1998)Google Scholar. See also the Sentencing Council Guidelines, above n 122.

139. The imposition of an appropriate sentence is prima facie the decision of an individual sentencing judge but is of course the culmination of decision making by all three branches of government: legislature (maximum/minimum sentences set out in legislation); executive (pre-sentence reports, the identification of mitigating and aggravating factors, principles set by the Sentencing Guidelines Council); and the judiciary. ‘State’ is therefore used collectively and indivisibly.

140. Above n 138.

141. Harding and Ireland, above n 124. One example of the way in which the indirect effects of imprisonment are taken into account is when a parent is sentenced; the sentencing judge must have at the forefront of his mind the impact on the offender's children. See R (On the application of P) v Secretary of State for the Home Department[2001] 1 WLR 2002 and R v Wayne Steven Bishop[2011] EWCA Crim 1446.

142. Cane, above n 132. See also Duff, A Punishment, Communication and Community (Oxford: Oxford University Press, 2001)Google Scholar.

143. Hart, H Punishment and Responsibility (Oxford: Oxford University Press, 1968)Google Scholar. This is one purpose of sentencing for young offenders. See above n 122.

144. Freeman, M The Rights and Wrongs of Children (London: Frances Pinter, 1983)Google Scholar; Eekelaar, J The emergence of children's rights’ (1986) 6 Oxford Journal of Legal Studies 161 CrossRefGoogle Scholar; and J Feinberg ‘The child's right to an open future’ in W Aitken and H LaFollette (eds) Whose Child? (Totowa, NJ: Littlefield, Adams and Co, 1980).

145. For a full development of this argument see K Hollingsworth Children, Rights and Criminal Justice (Oxford: Hart, forthcoming).

146. Sen, A Development as Freedom (Oxford: Oxford University Press, 1999)Google Scholar and Fredman, S Human Rights Transformed: Positive Rights and Positive Duties (Oxford: Oxford University Press, 2008)CrossRefGoogle Scholar. Compare with Berlin, I Four Essays on Liberty (Oxford: Clarendon Press, 1969)Google Scholar.

147. An argument based on reparation of the harm to the child's foundational rights also explains why this legal duty is owed to children but not necessarily to adults.

148. The average length of detention is 78 days, but if children on remand are excluded from the average it increases to 114 days for those on a DTO and 351 days for those sentenced under other custodial provisions (YJB workload data 2007–2008). Most custody-leavers would therefore cross the 13-week threshold (also, time spent previously ‘looked after’ would – like now – also count).

149. Ministry of Justice and YJB, above n 63, para 14.

150. CYP Now estimate that the cost to local authorities of extending ‘looked after’ status to children on remand (including the costs when the children leave the secure placement) will be £500,000 million. However, their figures appear to be based on all remand children retaining the ‘looked after’ status upon leaving the secure placement, which is unlikely (though they may then become entitled to care-leaver support).

151. For example, looking at savings in healthcare, the criminal justice system, homelessness etc. Barnardo's has estimated that failing to support custody-leavers effectively is more costly to the tune of £67,000 over a 3-year period. Glover and Clewett, above n 2, pp 15ff.

152. Taylor, above n 7, p 26.