Manchester City Council v Higgins [2005] EWCA Civ 1423

Case No B2/2005/1730

[2005] EWCA Civ 1423

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

Venue ON APPEAL FROM MANCHESTER COUNTY COURT

Recorder Main QC 4MA15166

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date Thursday 24th November, 2005

B e f o r e:

LORD JUSTICE WARD

AND

LORD JUSTICE GAGE

Between

MANCHESTER CITY COUNCILAppellant

HIGGINSRespondent

(Transcript of the Handed Down Judgment of

Smith Bernal Wordwave Limited, 190 Fleet Street

London EC4A 2AG

Tel No: 020 7404 1400, Fax No: 020 7831 8838

Official Shorthand Writers to the Court)

Mrs Zoe Thompson (instructed by Manchester City Council) for Appellant

Mr John Hobson (instructed by Shelter Housing Aid Centre) for Respondent

J U D G M E N T As Approved by the Court

[1]South Gorton must be one of the less desirable residential areas of Manchester. When not loitering idly on street corners, young vandals damage cars, kick down fences, smash windows and are generally foul mouthed and abusive to all and sundry. The respondent to this appeal, Lorraine Higgins, says she and her family have suffered such damage and such abuse. That may well be true but what the case is about - and it is a deeply depressing story − is the appalling misbehaviour of her 12 year old son, James. A near neighbour, Mrs Marion Copeland and her family, have been the victims of his malicious damage, bullying and abuse. The appellant, the Manchester City Council, brought proceedings against the respondent on grounds of the breach of the obligations of her tenancy that she and those living with her should not harass her neighbours and of their causing a nuisance or annoyance to them. On 20th May 2005 Mr Recorder Main Q.C. found the grounds established, held it was reasonable to make a possession order but suspended its operation for 18 months on terms, in summary, she complied with her tenancy agreement and took steps to improve her parenting skills. The council now appeal with leave of the Recorder. The Facts.

[2]The respondent is a single mother of three children, Emma who will be 16 years old in a month's time, James who turned 13 in August and Roisin who is 2 years old. Roisin was born with two holes in her heart. She has needed and continues to need regular medical attention and it is easy to understand that the state of this little girl's health has contributed to the mother's stress. She saw her doctor in September 2004 complaining of feeling depressed which may have been a problem that had troubled her for some years. There is a letter from the general practitioner who felt that "a lot of her difficulties related to social problems and the fact that she has a rather non−assertive personality". He prescribed anti−depressants for her but the Family Intervention and Support Services reported that she might not have taken that medication.

[3]She lives at 43 Hexham Road, Gorton South in Manchester as the tenant of the local authority whose tenancy agreement made on 19th June 1995 includes terms that:− "4.1 You are responsible for the behaviour of every person (including children) living in or visiting your home. You are responsible in your home, on surrounding land, in communal areas (stairs, lifts, landings, entrance halls, paving, shared garden, park, parking areas) and in the locality around your home. 4.2 You (or anyone living with you, or visiting your home) must not cause a nuisance, annoyance or disturbance to any other person. Examples of nuisance, annoyance or disturbance include:−• Loud music; arguing and door slamming; dog barking and fouling; offensive drunkenness; selling drugs or drug abuse; rubbish dumping; playing ball games close to someone else's home. 4.3 You (or anyone living with you, or visiting your home) must not harass any other person. Examples of harassment include:−

• Racist behaviour or language; using or threatening to use violence; using abusive or insulting words or behaviour; damaging or threatening to damage another person's home or possessions; writing threatening, abusive or insulting graffiti; doing anything that interferes with the peace, comfort or convenience of others."

[4]Mrs Copeland is a widow who has lived at 4 Lowther Avenue, in South Gorton, since about 1999. Her home is adjacent to the respondent's. She has three sons, each sadly suffering mental disability. Timothy, 17 years old, has the mental age of an 11 year old; Dean, aged 15, has the mental age of a 9 year old and Kenneth, aged 8, has the mental age of a 4 year old.

[5]James, and to a much lesser extent, Emma have caused Mrs Copeland much distress through their swearing at her and her children, bullying the children and damaging her property. It is unnecessary to catalogue each and every incident: it is enough to give the flavour. Thus in January 2004, James smashed three windows in her property and all the windows of her motorcar. In March James assaulted Dean. In April James and a friend threw mud through Mrs Copeland's open front door, some of it striking Kenneth. Again in April James and another boy were throwing beer bottles into her back garden at 1 a.m. On 9th May her windows were again damaged and Dean was again assaulted.

[6]As a result on 13th May 2004 the Housing Services Manager of the local authority had to write to complain and to require the respondent to attend "a formal neighbourhood nuisance interview". Following that interview the Local Services Manager wrote to the respondent in these terms:− "As I have explained to you at the meeting we have had numerous complaints regarding your son's behaviour. It was pointed out to you that you are responsible for the behaviour of every person (including children) living in or visiting your home, and that any nuisance behaviour from yourself or others in your home is a breach of your tenancy agreement and could lead to eviction from your property. As I pointed out to you during the interview, the anti−social behaviour of your son James Nicholas can no longer be tolerated. We have discussed this matter with you on numerous occasions and given you several warnings about this serious problem. It was explained to you that if James's behaviour did not change we would be left with no alternative but to begin legal proceedings."

[7]The letters had no effect. On 14th May Emma and James were abusive and threw stones at Mrs Copeland. Later they picked on Timothy and when Mrs Copeland intervened, they again threw stones at her. The police were called. Mrs Copeland spoke to the respondent to tell her that the police were coming and that she would report the matter to the housing authorities. The respondent's response was to say:− "I don't give a shit if you have rung the police. I am going out." James and Emma began to swear at Mr Copeland in their mother's presence. The respondent simply laughed and did nothing to stop them. On 27th May windows were again broken by James whose response was "So what. I don't care". On 9th July James persuaded Timothy to let him enter the house whilst Mrs Copeland was absent. They stole her jewellery and both were arrested. Getting her son into trouble with the police was for Mrs Copeland "the final straw".

[8]James had not confined his misbehaviour to Mrs Copeland. Police evidence before the court showed that he had come to the attention of the police on many occasions involving many others. The police referred the family to the Youth Support Team and there were meetings with the Family Intervention and Support Services, the Education Welfare Services, the Youth Offending Team and the Housing Department, all trying to develop and implement a care plan for the whole family unit. Part of that which was in place by about the summer of 2004 was support from SureStart, a nationwide government initiative to improve the health and wellbeing of parents and children of 5 and under.

[9]If the respondent needed to be reminded of the seriousness of her position, the local authority applied for an injunction against her which was granted without notice to her on 24th August returnable on 8th September. On that date the respondent represented by her solicitor gave undertakings in which she promised whether by herself or by allowing, inciting or encouraging any other person not to engage in conduct capable of causing nuisance or annoyance to a person with a right to reside in the neighbourhood of her home or harass, use abusive or insulting or threatening behaviour or use or threaten violence against any such person or enter or attempt to enter Mrs Copeland's property. Despite that promise two girls called at Mrs Copeland's home that very evening telling her that James was "going to get" Timothy.

[10]By the end of September Manchester City Council considered it necessary to take action. They applied to the Magistrates Court for an Anti−Social Behaviour Order ("an ASBO") against James. This was granted on 5th November restraining him from acting in an anti−social manner, using abusive, insulting, offensive, threatening or intimidating language or behaviour in a public place, throwing stones or other missiles or approaching Mrs Copeland and other named persons. This order was to continue until his 16th birthday.

[11]It had no effect. On 14th December at about 4.15 a.m. Mrs Copeland was woken by James "smashing up" her two motorcars, a mobility car and her own car. He threw what looked like part of a gatepost through the back window of her car, he broke the wing mirrors, let down the tyres and scratched his initials "JN" onto the bonnet of one of the cars. She said it cost £1,730 to repair the damage on the mobility car and her Citroen was said to be a complete write−off. James was arrested and placed in a bail hostel for young persons in Bury.

[12]On 2nd February 2005 the Council issued its claim for possession under grounds 1 and 2 of Schedule 2 of the Housing Act 1985 as amended.

[13]Whilst on remand James assaulted a fellow 11 year old youth at the same hostel. He appeared before the Manchester Youth Court on 23rd February 2005. He was placed under supervision for two years for the offences of criminal damage and the assault. As part of that supervision order he was placed on an intensive supervision and surveillance programme. It did not prevent further harassment. In April there were several incidents where James was abusive to Mrs Copeland and her children. On 21st April he thumped Dean on the back. On 30th April he threw stones at her car. Other acts of damage to property in the vicinity were reported to the police. The Judgment.

[14]The Council called Mrs Copeland, Ms Giannaris their Community Support Officer, Miss Parkinson, their Anti−social Behaviour Case Manager and P.C. Hibbert responsible for the youth offending in the subdivision and anti−social behaviour. The respondent was the sole witness called on her behalf. The recorder gave judgment ex tempore the following day, 20th May 2005. There is an approved transcript of his judgment from which we have worked. To assist the parties consider their position he generously volunteered to provide a typed transcript from notes he had made. That is also before us. It differs in some respects from the approved transcript but I do not believe the differences are material.

[15]The first question he addressed was whether he was satisfied, on sound evidence, that James had been engaging in anti−social behaviour and concluded that he had absolutely no doubt that he was. He said:−"37. × I found Mrs Copeland to be a straightforward, somewhat naïve, but wholly convincing and reliable witness. I have no reason to doubt her account she gives in any of her three statements which she confirmed on oath, on which she was cross−examined and I find her to be an accurate and reliable witness.

38. I found the evidence of the defendant to be quite inadequate. Not only was she not able to bring to mind many of the complaints relied upon, but she seemingly took the view, regardless of the nature of the complaints that had been made, that if James said he did not do it, then he did not do it. From a son who she knew had been truanting from school, had been engaging in damaging and destructive behaviour behind her back (conduct which she initially denied he had been involved in) in the early hours of the morning, any reliance on his account in such a way would be self−evidently preposterous.

39. I therefore find that James and to a much lesser extent Emma had been engaging in serious, particularly in James's case and repeated incidents, albeit not continuous, anti−social behaviour which would amount to a breach of clauses 4(1) to 4(3) of the Tenancy Agreement."

[16]He then turned to consider whether a possession order was appropriate and if so whether it should be immediate or suspended reminding himself that in that context "personal fault is a highly relevant factor".

[17]He referred to the respondent's problematic family circumstances, Roisin's medical condition and her own difficulties. There was evidence of a real need for long−term support for her. He held:−"43. I have little doubt therefore that a challenging lad like James - because he may be many things but of one thing I am certain, he is certainly very challenging, with a clear propensity, I suspect, towards anti−social behaviour as demonstrated by an 18 month period at least that I have referred to above - would have presented to this defendant an enormous problem. The reality of her wholly inadequate parenting skills is difficult to ignore.

44. In any event having listened to her in the witness box it seems to me that she has not the slightest conception of the nature of the problems that James had presented with, to the members of the local community or how she might go about tackling it. Her only solution appeared to be the holding back of his pocket money, possibly making him go without a Play Station 2 game or some sort of acquisition he might want to make, such as a pair of jeans.

45. The issue of parental supervision, restricting his activities, seem not even to have crossed her mind. James, self−evidently and I find, was allowed to go out and play out whenever he liked and mix with whomsoever happened to be on the street corner and engage in any activity of his choosing, good or ill, without any apparent supervision. In an age of a child of 11 years, I find that remarkable.

46. Regrettably, I am driven to the conclusion that the defendant has exhibited what I will describe as a "belle indifference" to the supervision of her son and in the controlling of his activities. I also find, having heard the evidence and accepted the evidence of Mrs Copeland, that when on one occasion she was confronted with James's behaviour in May 2004, her attitude was just to laugh it off, with a care−less or care−free attitude, more or less saying:

"I am going out. If the police arrive, no doubt they will be confronting an empty door". 47. I find this quite extraordinary, even when she knew that her son had, by then on one occasion, trashed Mrs Copeland's car, committed criminal damage and indeed later on had done this more than once. What I also find extraordinary and as an indication of her complete incompetence to address these issues, she never once spoke any remorse or apology to Mrs Copeland about it and her excuse when she was asked about it specifically was that she did not have the time. I regard that statement as lame in the extreme. 48. I therefore find the defendant did have a significant personal responsibility to what unfolded between November 2003 and April 2005. In the circumstances, given the significant effect this behaviour has had on Mrs Copeland, her sons and other neighbours, I have no doubt that a possession order is both merited and required."

[18]The final question he posed was this:− "am I required, in the question of assessment of proportionality, to consider whether this ought to be suspended?"

[19]He was satisfied that without James the defendant Emma and Roisin would be able to live quietly and sensibly without interference of their neighbours for the foreseeable future but as for James:− "by reason of the fact that even the Youth Team has had now to apply for a secure accommodation order, the implication being that James has not been responding to intensive disciplinary support or supervision in the community, he does have very challenging behaviour."

[20]His conclusion was this:−"51. To hold this defendant solely and personally responsible for that behaviour would be quite inadequate and unfair. She does have inadequate parenting skills and that I have already found. She does have a poor conception as to what is required in the context of the sort of skills she needs to put into effect, even in an attempt to deal with James's challenging behaviour, but it has to be reflected against the background of James having the most challenging sort of behaviour, which even the most adept parent would have some difficulty in dealing with. A young child, with an ASBO and already in secure accommodation for a 12−month order at the age of 12œ speaks for itself.

52. I must assess proportionality and I must take into account the needs of the neighbours. I must take into account the fact that James will continue to be under close supervision and guidance and training in Liverpool, whilst at the same time the defendant will be gathering support from Sure Start as to her parenting skills such as they are. I bear in mind that after he is released, the ASBO imposed on 5th November last year will still apply until his 16th birthday and that in the event of any repetition of behaviour which breaches that, the police will be able to attend on complaint and arrest him and take him before the Youth Court. This is a very important factor I must take into account in assessing what is the proportionate remedy.

53. I am not satisfied, in the circumstances, that there is an immediate need for possession. Self−evidently, there is no immediate need until November 2005 potentially. I do not regard it as proportionate to exclude the family, given the multifarious problems they have, immediately. I find it very difficult to give up on any chance of James, at the age of 12œ, with intensive and appropriate and targeted guidance and supervision, making some sort of improvement on his behaviour over the next six months and possibly longer."

[21]Consequently the recorder found it appropriate and proportionate to suspend the order for 18 months but subject to conditions which were recited in the order as follows:− "(a) The defendant do comply with the terms of her Tenancy Agreement, in particular clauses 4.1 and 4.3; (b) The defendant and/or any person residing or visiting 43 Hexham Road does not engage in conduct causing or likely to cause a nuisance or annoyance to a person residing, visiting or otherwise engaging in a lawful activity in the locality; (c) The defendant do continue to attend SureStart or another agency which provides assistance for the purpose of improving her parenting skills and do continue to keep in regular contact with Manchester City Council Family and Support Services; (d) The defendant do continue to receive and maintain support from the Youth Support Team; (e) The defendant do continue to abide by the terms of the undertaking she gave to the court on 8th September 2004."

[22]He gave permission to appeal saying:− "I'm just going to say briefly that it is unusual to give permission to appeal in circumstances generally which have been decided or by my assessment of facts where I have a broad discretion. The reason why I am giving you permission and why I think it is important [that] it is dealt with by the Court of Appeal is because the 2003 Act has obviously changed the emphasis in the context of anti−social behaviour. In those circumstances, it seems to me, the sooner judges (inaudible ) given better guidance as to how anti−social behaviour of this sort is dealt with - where the person responsible is in secure accommodation for a limited period, particularly a young person - and given the obligations that now appear under the 2003 Act, it seems to me that it is important for there to be a look at this beyond what has currently happened in the current cases, because that is a feature which I certainly thought long and hard about last night and I think further guidance would be helpful."

[23]He put it slightly differently in his own typed note saying:− "This was a very borderline decision between the making of an immediate order and a suspended order. The previously decided cases to which I have referred have not been decided in the context of a regime where ASBOs have been up and running and where intense supervision and surveillance programmes have also been in operation. It is clearly the case that the new section 85A(2) of the Housing Act 1985 does require greater emphasis to be paid, in the making of such possession orders, to the needs and requirements of neighbours and persons affected by nuisance and annoyance. It seems to me important therefore, given the difficulty I have experienced, that guidance is obtained from the Court of Appeal, particularly in the context of young boys with ASBOs exhibiting anti−social behaviour in this context."

[24]In the written reasons judges are required to give in allowing or refusing permission to appeal he said:− "Difficult - borderline case for an immediate possession order - interaction between the need to give greater emphasis to neighbours under s.85A(2) of the Housing Act 1985 against the need to be proportionate in the context of the remedy - 12 year old boy with ASBO and ISSP converted into a secure unit order. No immediate need for possession, so with the 12 year old in secure unit to November 2005. Then what? None of the CA cases so far, have addressed the situation where the offending person is the subject of an ASBO and intensive social work support. Found case a troubling one - feel some Court of Appeal guidance on this type of case will be valuable, especially with very young boys with ASBOs." The Appeal.

[25]The local authority appeal against the suspending of the possession order. There is no cross appeal by Miss Higgins against the findings of her children's anti−social behaviour and the consequent breaches of the terms of her tenancy, nor does she appeal against the finding that it was reasonable to make the possession order. Strictly speaking, therefore, the appeal has a limited focus. The Statutory Background.

[26]This is a secure tenancy within Part IV of the Housing Act 1985. Consequently the tenant enjoys security of tenure. The tenancy cannot be brought to an end by the landlord except by obtaining an order of the court for possession of the dwelling−house. Pursuant to section 84 of the Act the court shall not make an order for possession of a dwelling−house let under a secure tenancy except on one or more of the grounds set out in Schedule 2. The grounds for possession set out in that schedule include as Ground 1 the fact that an obligation of the tenancy has been broken or not performed. Ground 2 applies where the tenant or a person residing in or visiting the dwelling−house:− "(a) has been guilty of conduct causing or likely to cause a nuisance or annoyance to a person residing × in the locality."

[27]Establishing the ground is, therefore, the first task of the judge. It is invariably a matter of fact and the findings are difficult to appeal.

[28]The second question for the court arises out of section 84(2) of the Act which provides that:− "The court shall not make an order for possession -(a) on the grounds set out in Part I of that Schedule [Schedule 2] (Grounds 1−8), unless it considers it reasonable to make the order." That must now be read with Section 85A inserted by the Anti−social Behaviour Act 2003, Section 16(1). This provides:− "(1) This section applies if the court is considering under section 84(2)(a) whether it is reasonable to make an order for possession on Ground 2 set out in Part I of Schedule 2 (Conduct of Tenant or Other Person). (2) The court must consider, in particular - (a) The effect that the nuisance or annoyance has had on persons other than the person against whom the order is sought;

(b) Any continuing effect the nuisance or annoyance is likely to have on such persons;

[29]It will be seen, therefore, first, that section 85A applies only in nuisance and annoyance cases and secondly, it goes to the issue of reasonableness. As this court held in Moat Housing Group v Harris and Hartless [2005] EWCA Civ; [2005] H.L.R. 33 at paragraph 144:− "This section clearly owes its origin to a concern on Parliament's part that judges were not paying sufficient attention to these particular matters when deciding whether or not it was reasonable to make a possession order." Deriving as it does from the Act which introduced the power for County Courts to make anti−social behaviour orders against a person who is not a party to the principal proceedings but his/her actions are material to those principal proceedings, it is a reminder that such behaviour, which is almost always bound to be a nuisance and annoyance to those on unruly estates is not to be tolerated whenever it has a deleterious impact on others. It is to be observed that the focus of this section is on the effect the nuisance or annoyance has on others.

[30]In all cases the court still has to look at the reasonableness or otherwise of making the order. This is a wide value judgment for the court to make. The interests of the parties are engaged but so are the interests of the public at large. The interest of the tenant will include all reasons which bear on why his personal circumstances are such that it would still be reasonable for him to continue in occupation. The interests of the landlord lie in his protecting those affected by the nuisance and annoyance and in the management of his estate, this being a particular concern for social landlords such as a local authority housing department which has the difficult task of allocating increasingly precious housing stock. As Lord Greene M.R. said in Cumming v Danson [1942] 2 All E.R. 653, 655:− "In considering reasonableness × it is, in my opinion, perfectly clear that the duty of the judge is to take into account all relevant circumstances as they exist at the date of the hearing. That he must do in what I venture to call a broad, commonsense way as a man of the world, and come to his conclusion giving such weight as he thinks right to the various factors in the situation. Some factors may have little or no weight, others may be decisive, but it is quite wrong for him to exclude from his consideration matters which he ought to take into account."

[31]To appeal a finding of reasonableness is not easy. This court will not interfere unless the judge has erred in principle; taken into account some matter which he should not have taken into account or left out of account something which he should have taken into account; or that the decision is plainly wrong in the sense not that an appellate judge would have taken a different decision had it been his or hers to take but that the decision under appeal falls outside the generous ambit within which there is room for reasonable disagreement.

[32]The third and final task for the trial judge is to decide whether or not to exercise the extended discretion given to the court by section 85 of the Act which provides as follows:− "(2) On the making of an order for possession of such a dwelling−house on any of those grounds × the court may -(a) stay or suspend the execution of the order or

(b) postpone the date of possession, for such period or periods as the court thinks fit. (3) On such an adjournment, stay, suspension or postponement the court − ... (b) may impose such other conditions as it thinks fit."

[33]An appellant again has a high hurdle to overcome successfully to appeal an exercise of such discretion. The Court of Appeal's approach will be similar to that set out above.

[34]The recorder seeks the guidance of this court to assist the County Court in exercising its discretion. I fear I cannot be as helpful as he would wish simply because each case must depend upon its own facts and the weight to be given to various factors will vary depending on the circumstances. Without intending this to be an all−embracing guide, I would venture these few thoughts.

[35]First, the discretion is quite unfettered save that, of course, it must be judicially exercised. It follows that all the circumstances of the case are material to be borne in mind. In one case the facts giving rise to the making of an ASBO may be so serious that both the making a possession order and the refusal to suspend it will be self evident. In another case the making of the ASBO may have served its purpose of restraining future misbehaviour so that although past conduct might make it reasonable to order possession yet suspension might still be possible.

[36]Secondly, if the misconduct by the tenant or even by a member of the household were serious and persistent enough to justify an ASBO then that will be strong but not conclusive evidence that the tenant will have forfeited his entitlement to retain possession. As Robert Walker L.J. observed in West Kent Housing Association Ltd. v Davies (1998) 31 H.L.R. 415, 425 the judge must not underestimate:− "the effect both on the neighbours × and other parts of the estate and on the housing association itself of the message that is given if serious breaches × occur and the court, on the matter being taken to it, makes no order against tenants who are found to have committed those breaches." As Simon Brown L.J. put it in Portsmouth City Council v Bryant (2000) 32 H.L.R. 906, 913:− "It would in my judgment be quite intolerable if they [the neighbours] were to be held necessarily deprived of all possibility of relief in these cases, merely because some ineffectual tenant next door was incapable of controlling his or her household." Kay L.J. said this in Canterbury City Council v Lowe (2001) 33 H.L.R. 53:− "There is a need to support those who do have the courage to come forward and complain when complaint is legitimate about their neighbours in this sort of way." Waller L.J. added:− "The housing association has, it seems, been doing its best to improve the quality of life for those living on this estate. To take a matter like this to court calls for considerable effort and determination on the part of a socially responsible landlord, in marshalling a case, and in obtaining witnesses who are prepared to give evidence despite the possibility of intimidation. It cannot to my mind be right that the court should not recognise the seriousness of a case of this sort."

[37]Thirdly, since the court will already have found that it is reasonable to make a possession order, the question of whether or not to suspend its execution must be very much a question of the future. As Kay L.J. held in Canterbury CC v Lowe :− "There is no point suspending an order if the inevitable outcome is a breach. Any factor which is relevant as to whether there will be future breaches must, in my judgment, be relevant to the question of suspension. This would include the fact that following an injunction things had considerably improved or that a person is likely to observe an injunction if one was granted at the same time." Previous unheeded warnings point one way: genuine remorse the other. The level of support available to a parent who is making proper efforts to control an errant child will be relevant. There must, however, always be a sound basis for the hope that the anti−social behaviour will cease.

[38]Ultimately, given the

Article 8 ECHR

respect for the tenant's home, the question is whether an immediate possession order is necessary in order to meet the need to protect the rights and freedoms of others - the neighbours - and is proportionate to it. Suspension in this Case.

[39]Mrs Zoe Thompson for the council submits the judge erred in these ways:− i) There was no evidence to support a finding that there was a real prospect of "some sort of improvement on [James's] behaviour". ii) There was no evidence to support a finding that the ASBO would be a successful means of controlling the anti−social behaviour. iii) The finding that the mother was not solely and personally responsible for the misbehaviour was irrelevant. iv) He failed to take into account or adequately to take into account the effect of the anti−social behaviour on the neighbours and other tenants of the estate.

[40]Mr John Hobson for the tenant valiantly submits that the court should not interfere with the exercise of discretion; the judge had evidence to find that there was hope of improvement and that with support the ASBO would be effective; that the degree of personal responsibility was material and that the neighbours' interests were taken into account.

[41]In my judgment the Recorder was wrong to find it very difficult to give up on any chance that James would improve. He found there was that hope of some sort of improvement "with intensive and appropriate and targeted guidance and supervision". We were uncertain what supervision was in place for James after his release from the secure unit and invited counsel to inform of the present position. Their agreed researches reveal that pursuant to sections100(3) and 103 of the Powers of Criminal Courts (Sentencing) Act 2000 the period of supervision continues after release and ends when the term of the order ends, in this case 22nd February 2006. Thus for the time being he is subject to the Intensive Supervision and Surveillance Programme. He is undergoing reparation work, and is receiving education in one−to−one sessions. He is subject to 7.00pm to 7.00am curfew, compliance being monitored by way of electronic tagging. There was scant material before the Recorder to give him confidence in James' reformation. If history were predictive of the future then the future would seem bleak. James had shown himself to be unrepentantly anti−social. The warnings given to his mother in May and June had no effect on her or on him. The injunction brought no end to the wrongdoing. The very day on which the mother gave her undertakings James sent his emissaries to threaten Timothy Copeland. The most appallingly destructive acts of vandalism occurred within 9 days of the making of the ASBO. The supervision order and its intensive help from supervision and surveillance did not stop James assaulting Dean Copeland and throwing stones at Mrs Copeland's car. I could readily understand it if the recorder had despaired of any improvement in the fortunes of the tenant family if they were to be made homeless and must have wished to prevent an already appalling future for this family, and James in particular, being made even worse by their eviction but I regret that his hope for improvement was wishful thinking not supported by the evidence.

[42]The mere fact that the ASBO remained in force until James attained the age of 16 and that the police had powers to deal with future breaches would give the neighbours no sufficient protection for the reasons I have explained. He cocked a snook at it within days of its imposition: indeed he demonstrated his contempt for the order by his rampage of destruction on the two motor cars on 14th December. The making of an ASBO could in some cases be the harbinger of better times but the mere fact of its having been made and remaining in place serves in this case more to emphasise the seriousness of the misbehaviour and therefore the need for immediate protection from it than the hope without more that it will cause the offending to cease.

[43]That the mother was not solely to blame may be the case in most instances of anti−social behaviour so that does not by itself justify suspension. Here the recorder had found that "the defendant did have a significant personal responsibility" with emphasis added by me. She was herself without remorse and at all times totally indifferent to the effect her children's behaviour was having on her neighbours.

[44]The Recorder did, it is true, say that "I must take into account the needs of the neighbours". It is, however, difficult to see what weight if any he gave to the effect the behaviour was having on them. He accepted Mrs Copeland's evidence. She said in her written statements, affirmed on oath as correct:− "All this is making me ill. The behaviour of the defendant's children frightens me and upsets me greatly. It causes me to have problems with my breathing. When this happens, it upsets my sons, who are, as I have already mentioned, mentally impaired", and, "I really am getting sick and tired of the defendant's son. He carries on causing problems for me and my family, despite the fact there is an ASBO in place. He smashed my car up in December 2004 and was placed on a supervision order because of this but his behaviour is still bad. I feel like I have to keep an eye on my car all of the time, because I am worried about what the defendant's son might do to it. He has also damaged my car so many times and is obviously not bothered by the ASBO or his supervision order; he just seems to do what he wants. My sons don't feel safe playing out or going into the shops because of the behaviour of the defendant's son."

[45]In my judgment the behaviour of the defendant herself and her children, especially James, was quite intolerable. Absent any expression of remorse or any well founded expectation of improvement it was disproportionate not to make an immediate possession order. The defendant had forfeited her right to respect for her home. In my judgment the Recorder erred. He should have made an order for possession in 28 days. I will therefore allow the appeal and vary his order accordingly.

Lord Justice Gage :

[46]I agree that this appeal must be allowed. I only add a few sentences of my own because we are reversing an order made by the Recorder in the exercise of his discretion. In his judgment the Recorder referred to a number of the relevant authorities. It is clear that he had in mind the principles upon which his discretion should be exercised. In those circumstances the argument that this Court should not interfere with his decision is a powerful one. Nevertheless I have concluded that his decision to suspend the possession order was wrong. I have arrived at this conclusion for two reasons.

[47]First, in my view, on his findings as to James' past conduct and the respondent's apparent indifference or inability to recognise that her son, James, had done anything seriously wrong, the Recorder took a too sanguine view of the future prospects of James behaving himself when released from secure accommodation. The ASBO made on 5 November 2004 was demonstrably unsuccessful in controlling James. He continued to vandalise Mrs Copeland's property. He was made the subject or a 2 year supervision order. On the same date his mother was placed on a 3 month Parenting Order. As part of his 2 year supervision order James was placed on an intensive supervision and surveillance programme (ISSP). Further acts of anti−social behaviour by James followed and on 12 May 2005 the ISSP order was revoked by the youth court and replaced by a 12 month Detention and Training Order on the ground that James had breached the supervision order. In short, nothing up to that date had succeeded in controlling James. At the hearing of this appeal we were informed by counsel that that he has now been released back into the community from the secure unit where he was being held. Information sent to the court since the hearing shows that he is subject to supervision under ISSP conditions until the 12 month period of the Detention and Training Order expires.

[48]In his judgment the Recorder described the respondent's reaction to James' conduct as follows:

"46.Regrettably, I am driven to the conclusion that the defendant has exhibited what I will describe as a "belle indifference" to the supervision of her son and in the controlling of his activities. I also find, having heard the evidence and having accepted the evidence of Mrs C, that when on the one occasion she was confronted with James' behaviour in May 2004, her attitude was just to laugh it off, with a careless or carefree attitude more or less saying: "

I am going out. If the police arrive, no doubt they will be confronting an empty door." 47.I find this quite extraordinary, even when she knew that her son had , by then on one occasion, trashed Mrs C's car, committed criminal damage and indeed later on had done this more than once. What I find also extraordinary and as an indication of her complete incompetence to address these issues, she never once spoke any remorse or apology to Mrs C about it and her excuse when she was asked about it specifically was that she did not have the time. I regard that statement as lame in the extreme. "

[49]In addition, there is within the court papers an initial report on the respondent's progress under the Parenting Order which was not encouraging.

[50]In these circumstances, in my judgment, the Recorder was wrong to regard the continuance of the ASBO as having any real prospect of controlling James after his release from secure accommodation and to think that the respondent, his mother, would either make any real effort to control him, or, if she did, she would have any prospect of success in doing so. I see no reason to change this conclusion despite the most recent information expressed in a short report from Clive Wood, an ISSP support officer, dated 2 November 2005.

[51]Secondly, in my judgment, there is force in the submission that the Recorder failed to give sufficient weight to the position of neighbours and in particular Mrs Copeland. It is clear that Mrs Copeland has had to put up with a very great deal as a result of James' activities. She is a widow living with her three sons whose ages range from 18 to 9. All of her sons suffer intellectual deficits: the greatest being that of her eldest son. The Recorder found that the locality is a bad area for street crime. Property and cars are vandalised. One can readily understand that Mrs Copeland for good reason may well have been very fearful of James' return to the area.

[52]The Recorder, in his judgment, makes reference to the position of neighbours. However, in carrying out the balancing exercise which he needed to conduct when deciding whether or not to suspend the order, there appears to be greater emphasis on the future hope that James' behaviour might improve than on the needs of neighbours. This is expressed by the Recorder in the sentence "I find it very difficult to give up on any chance of James, at the age of 12œ×" No doubt, the needs of neighbours must have played some part in the Recorder's decision but, in my judgment, the Recorder cannot have given to them the weight which they merited.

[53]For those reasons, unhesitatingly, I conclude that the Recorder erred in the exercise of his discretion, and I agree that his order should be varied by deleting that part of it which suspends the order for possession.

[54]So far as the Recorder's desire for this court to give guidance to assist judges exercising their discretion in cases such as this, like Ward LJ I find it difficult to give any meaningful assistance. The circumstances of each case will, no doubt, vary considerably. The exercise of the court's discretion will be tailored to the facts of each individual case. It is an unfettered discretion to be exercised judicially. For this reason I decline to give any but the most general guidance. As to section 85 A(2), I agree with what Ward LJ has said in paragraph 29 of his judgment (a draft of which I have read).

[55]It is, of course, obvious that sections 84 and 85 involve the court in a two−stage process. The first stage is for the court to decide whether it is reasonable to make an order for possession. Only if the court is satisfied that it is reasonable to make an order for possession is it necessary for the court to consider the second stage involving the consideration of whether to suspend the order. The factors to be taken into account at each stage may very well be the same, or at least overlap. However, at the second stage there will be a greater focus on the future rather than the past. In other words, when deciding whether or not to suspend the order the court will amongst other things be concerned to devise the best method of protecting the needs of neighbours against the re−occurrence of the anti−social behaviour which gave rise to the order for possession being made. In some cases, of which in my opinion this is one, an ASBO will provide no real protection for neighbours. In other cases it may well provide adequate protection. Each case must be determined on its own facts. Beyond this, in my judgment there is no need to give further guidance, nor is it appropriate to do so.

Cited in 11 later judgments

and 2 more of the most senior