M, R (on the application of) v Inner London Crown Court [2003] EWHC 301 (Admin)

Case No CO/2682/2002

[2003] EWHC 301 Admin

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Venue Royal Courts of Justice

Date Monday, 10th February 2003

Strand

London WC2

B E F O R E:

LORD JUSTICE ROSE

(Vice President of the Court of Appeal, Criminal Division)

MR JUSTICE HENRIQUES

Between

THE QUEEN ON THE APPLICATION OF "M"Claimant

-v-

Between

INNER LONDON CROWN COURTDefendant

Computer-Aided Transcript of the Stenograph Notes 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)

MR M HARDIE (instructed by Amphlett Lissimore) appeared for CLAIMANT

MR J CROW (instructed by the Treasury Solicitors) appeared for Secretary of State as INTERESTED PARTY

J U D G M E N T

(As approved by the Court)

Monday, 10th February 2003

[1]MR JUSTICE HENRIQUES: This is an application for judicial review. Permission has been granted on paper by Sir Richard Tucker. An order has been made under section 39 of the Children and Young Persons Act 1933 prohibiting publication which might lead to the identification of the claimant's daughter, now aged 15. Accordingly I shall refer to the claimant as "AM" and her daughter as "M".

[2]AM challenges the decision of the Inner London Crown Court dated 11th March 2002 dismissing her appeal against the imposition at the Camberwell Youth Court of a 12 month parenting order made under section 8 of the Crime and Disorder Act 1998 and a compensation order in the sum of £30 made under section 137 of the Powers of the Criminal Courts (Sentencing) Act 2000 following the conviction of her daughter of an offence of wounding.

[3]Whilst this application will involve a consideration of the alleged irrationality of these particular orders, we are required to consider the proper classification of parenting orders and also to determine whether parenting orders are compatible with the Convention. The only question in relation to the section 137 order is the alleged irrationality.

[4]The Secretary of State has been given permission to intervene. The Crown Court has not been represented before us. The facts

[5]The claimant, AM, is the mother of M, who was 13 years of age at the date of the criminal offence, having been born on 5th March 1987. On 24th July 2000, at about 4.30 pm, she and a friend of the same age attacked another 13-year old girl in a Dulwich park. M allegedly held the victim whilst her friend inflicted a 10 centimetre wound to the forehead. The attack was said to be the culmination of a long running feud. The victim was a neighbour of the claimant. There had been animosity between the families over a long period.

[6]On 20th June 2001 at Camberwell Youth Court M was convicted of an offence contrary to section 20 of the Offences Against the Person Act 1861. On 17th July 2001 M was made the subject of an action plan order, requiring her to be under supervision for three months pursuant to section 69 of the Powers of the Criminal Courts (Sentencing) Act 2000. M's mother, AM, was made the subject of a parenting order pursuant to section 8 of the Crime and Disorder Act 1998 and a compensation order in the sum of £30 was made pursuant to section 137 of the Powers of the Criminal Courts (Sentencing) Act 2000.

[7]Both mother and daughter appealed to the Inner London Crown Court on 11th March 2002, M against conviction only. The appeals failed.

[8]Unfortunately, no transcript of the Crown Court proceedings is available. We do, however, have Mr Hardie's skeleton argument tendered in the appeal on behalf of the claimant, and we have a note taken by the clerk attending upon Mr Hardie.

[9]The proceedings concerning the claimant lasted for approximately one hour and ten minutes. Mr Hardie submitted that the orders were not reasonable and offended against Articles 5, 6 and 8 of the European Convention on Human Rights, and some five authorities were cited. The note of the judgment states, so far as is relevant:

"The magistrates, under s8 Crime & Disorder Act 1988, are required to be satisfied that the order is desirable in the interests of preventing any further offence by child... We have taken into account that this is a first offence; we have read the pre-sentence report which suggests that there should not be a parenting order but taking into account those factors we are perfectly satisfied that in the interests of preventing further offences the order should be made. There has been no infringement of the human rights legislation. Parliament was entitled to pass the Act to enforce parental duty in the public interest. The compensation order should not be quashed. The £30 should be paid. Parliament acted on the supposition that a parent has control of a child. It does not reflect a fault on the part of the parent or criminality, it is entirely reasonable to enforce the order against the parent. There is to be no order for costs on the appeal."

[10]I consider now the legislation, initially in relation to parenting orders. A parenting order is defined in section 8(4) of the Crime and Disorder Act 1998 as an order which requires the person in respect of whom it is made(1) to comply for a period not exceeding 12 months with such requirements as are specified in the order, and

(2) to attend for a concurrent period, not exceeding three months and not more than once a week, such counselling or guidance sessions as may be specified in any directions given by the responsible officer as defined in section 8(8).

[11]A parenting order may be made under section 8(2) if(1) any of the pre-conditions in section 8(1) are satisfied, and

(2) the relevant condition in section 8(6) is satisfied. The pre-conditions in section 8(1) are that (1) a child safety order, as defined in section 11 of the Crime and Disorder Act 1998, is made in respect of a child; (2) an anti-social behaviour order or sex offender order is made in respect of a child or young person;

(3) a child or young person is convicted of an offence; or,

(4) a person is convicted of an offence under section 443 of the Education Act 1996 (failure to comply with a school attendance order) or under section 444 (failure to secure regular attendance at school of a registered pupil).

[12]The relevant condition in section 8(6) is that the parenting order would be desirable in the interests of preventing(1) in the case falling within paragraph 11(1) or 11(2) above any repetition of the kind of behaviour which led to the child safety order, anti-social behaviour order or sex offender order being made;

(2) in a case falling within paragraph 11(3) above the commission of any further offence by the child or young person;

(3) in a case falling within paragraph 11(4) above the commission of any further offence under sections 443 or 444 of the Education Act 1996.

[13]The requirements that may be specified under section 8(4)(a) are those which the court considers desirable in the interests of preventing any such repetition or the commission of any such further offence (section 8(7)). The requirements and directions under section 8(4) shall also, so far as practicable, be such as to avoid any conflict with the parent's religious beliefs and any interference with the times, if any, at which he normally works or attends education establishment. A parenting order cannot be made unless the court has been notified by the Secretary of State that arrangements are in place for implementing the order in the area in which the person resides (section 8(3)). The making of a parenting order under section 8(2) is generally discretionary. However, where a person under the age of 16 is convicted of an offence, the court is required either to make a parenting order if the relevant condition is fulfilled, or, if the relevant condition is not fulfilled, to state in open court that it is not and why it is not (section 9(1)). In certain cases the court is under an express duty to obtain and consider information about the family's circumstances and the likely effect of the order on those circumstances (section 9(2)). Before making the order the court is required to explain its effect, the consequences of any breach and the court's power of review (section 9(3)). The court has power to vary or discharge a parenting order (section 9(5)). There is a criminal sanction for any breach of a parenting order committed without reasonable excuse (section 9(7)). The making of a parenting order can be appealed (sections 10(1), 10(4) and 10(5)). On appeal the appellate court effectively has the same powers as the sentencing court (sections 10(2) and 10(3)). Background to the parenting order legislation

[14]Prior to the introduction of the parenting order, the only means of requiring parents to address the offending behaviour of their children was by making an order binding over parent or guardian to taking proper care of and exercise proper control over the child or young person or by making the parent pay his child's fines, costs or compensation. It was with a view to supplementing the power to bind over the parent that Parliament introduced parenting orders.

[15]Considerable research and study had taken place. In 1993 the Home Office Select Committee reported on juvenile offenders, stating:

"In principle we believe that parents should take more responsibility for the upbringing of their children and we support the placing of obligations upon the parents of children who offend."

The Committee recommended that the Home Office study carefully what further steps could be taken to strengthen the duties which may be placed upon the parents of juvenile offenders.

[16]In 1996 the Audit Commission report "Misspent Youth" set out research indicating that children who are brought up in families with lax parental supervision and in poor neighbourhoods have a higher risk of becoming offenders. The report recommended that social services, in conjunction with education, health visitors and mental health services, should consider piloting schemes to provide guidance on parenting and assistance to those with difficulties.

[17]In 1997 the Home Office consultation paper "Tackling Youth Crime" first detailed the Government's plans to introduce parenting orders. It stated that the Government wanted to encourage parents to accept responsibilities for the behaviour of their children. It stated that in addition to making parents who wilfully neglect their responsibilities answerable to the courts, support and guidance was also necessary to help parents control their children.

[18]The consultation was followed by the 1997 White Paper, "No More Excuses - A New Approach To Tackling Youth Crime In England and Wales", which stated that:

"Parents of young offenders may not directly be to blame for crimes of their children, but parents have to be responsible for providing their children with proper care and control. The courts need powers to help and support parents more effectively to keep their children out of trouble."

[19]The Crime and Disorder Bill of 1998 introduced the parenting order in clauses 8, 9 and 10. The Government intended to make parents more responsible for their child's behaviour. The then Home Secretary, Jack Straw, stated in the House of Commons:

"The bill reinforces the crucial role of parents. Parenting orders will help and support those who are genuinely trying to control their children's unacceptable behaviour. Sanctions will be available for the minority who stubbornly evade their parental responsibilities."

[20]From September 30th 1998 to 31st March 2000 pilot schemes operated in twelve areas and were evaluated as successful before the parenting order was implemented across England and Wales on 1st June 2000. This appears to be the first case to be considered by the High Court.

[21]In September 2002 the Policy Research Bureau carried out research on behalf of the Youth Justice Board into parenting orders and concluded that parenting programmes cut youth offending by one third. Although many parents were initially against the order, nine out of ten said they would recommend it to other parents in their situation.

[22]In the year prior to the parents being referred to the programme, 89 per cent of their children had been convicted of an offence, compared to 61.5 per cent in the year after their parents left the programme. There was a reduction of 50 per cent in the number of recorded offences the children had committed over the same period. From an average of 4.4 recorded offences prior to the programme this reduced to 2.1 in the following year. Accordingly, parenting orders are achieving their aim, namely of reducing youth crime.

[23]Parenting orders have been used alongside financial orders to achieve this aim. Since no complaint of incompatibility is maintained in relation to the compensation order, I will not trace the development of those orders. The claimant's submissions on the issue of incompatibility

[24](1) Complaint is made that the legislation is mandatory in nature since section 9(1) states the court by or before which he is convicted, if it is satisfied that the relevant condition is fulfilled, shall make a parenting order.

[25](2) It is said the parenting order represents a serious interference with the private and family life of both parent and children. It is said it will create a stigma of failure in the eyes of the parent and the world at large in the role of parenting.

[26](3) Complaint is made that the subject of an order is required under compulsion to leave her child or children for several hours each week to attend compulsory classes. Child care arrangements have to be made and costs incurred both for travel and child care.

[27](4) The parent against whom the order is made tends to be the parent who attends court.

[28](5) The parent when at court will not be legally represented. He or she may be disparaged by an advocate acting on behalf of the child or young person.

[29](6) The mandatory nature of the order provides no test of reasonableness nor seriousness threshold, nor any need to find an objectively based fear of further offending, nor any family or schooling problem.

[30](7) The parent does not have to consent to the order.

[31](8) Whilst the parent has a right of appeal, the court has no duty to inform the parent of the right of appeal.

[32](9) It is said that a parenting order is similar in character to a community rehabilitation order and that it imposes an obligation to perform a positive act. Since there is no requirement in the relevant condition that the court find the parent to be at fault, this is inherently unfair.

[33](10) Since there is no seriousness threshold, an order, it is said, could be imposed for an one-off litter offence.

[34](11) Finally, it is said by way of complaint that a parenting order cannot be said to be necessary and proportionate under

Article 8 of the Convention

when an order can be imposed with no findings of reasonable grounds to believe that there will be a repeat, nor that the parent was responsible in any way for the offence.

[35]Mr Hardie indicated in argument that he no longer placed any reliance upon either Article 5 nor Article 7. Further, he conceded that in relation to Article 6 he could no longer assert that the imposition of a parenting order involved any criminal charge. Such argument was indeed unsustainable. Had I faced the task of deciding whether a parenting order involved a criminal charge, and had I examined the three criteria identified in Engel v Netherlands (No 1)

[1976] 1 EHRR 647

, namely the categorisation in domestic law, the nature of the misconduct and the nature and severity of any sanction, I would very swiftly have rejected the notion that a criminal charge was involved.

[36]Mr Hardie focused on two targets. First, he submitted that the parenting order legislation was not compatible with Article 6 in relation to civil cases, and in relation to Article 8(2) he asserted that the order represented an interference with the claimant's private and family life which was neither necessary nor proportionate.

[37]In relation to Article 6 Mr Hardie contends that justices, before making an order, should apply the heightened civil standard of proof which was, for all practical purposes, is indistinguishable from the criminal standard.

[38]Mr Hardie relied upon Lord Steyn's approbation of the observations of the Recorder of Manchester, Sir Rhys Davis QC, in the Crown Court in the case of McCann and others, in which he had indicated that the court had decided for the purposes of that particular case to apply the standard of being satisfied so that they were sure before making an anti-social behaviour order. He had decided to apply the civil standard with the strictness appropriate to the seriousness of the matter to be proved and the implications of proving them. Lord Steyn said in Clingham, McCann and others

[2002] UKHL 39

"This is an important observation by a highly experienced judge"

. Lord Steyn returned to the topic at paragraph 37 when he said that in his view pragmatism dictated that the task of the magistrate should be made more straightforward by ruling that they must in all cases under section 1 apply the criminal standard.

[39]Accordingly, submits Mr Hardie, it would be appropriate if justices only made parenting orders if they were sure it was appropriate to do so. If that be too high a standard, he submitted that the court should, on making an order, act with "scrupulous fairness", an expression used by Lord Bingham of Cornhill in Mcintosh v Lord Advocate

[2001] 3 WLR 119

in relation to the making of confiscation orders, and an expression also used by Lord Hope of Craighead at paragraph 80 of Clingham, McCann and others, when he said:

"Although the jurisprudence of the Strasbourg Court appears to me as yet to be unclear on this point, I would hold that the fact that prohibitions made under section 1(6) of [the Crime and Disorder] Act may have this effect is sufficient to attract the right to a fair trial which is guaranteed by article 6(1). This means that the court must act with scrupulous fairness at all stages in the proceedings."

Reliance is also placed on Lord Steyn's observation at paragraph 29 of that case:

"For my part, in the light of the particular use of the civil remedy of an injunction, as well as the defendant's right under article 8 to respect for his private and family life, it is clear that a defendant has the benefit of the guarantee applicable to civil proceedings under article 6.1. Moreover, under domestic English law they undoubtedly have a constitutional right to a fair hearing in respect of such proceedings."

[40]Mr Hardie accordingly submits that notwithstanding the fact that imposing a parenting order is a civil proceeding, a court should only make an order if it is satisfied so that it is sure that the conditions are fulfilled or, alternatively, the court, when making such an order, should do so with scrupulous fairness. The Secretary of State's response

[41]In response, Mr Crow, on behalf of the Secretary of State, points out that the Act does not specify any particular standard of proof, and thus the Act cannot for that reason be incompatible with Article 6. He draws attention to the fact that a court, when contemplating an anti-social behaviour order, has two tasks: under section 1(1)(a) to determine whether a person has acted in an anti-social manner, and under section 1(1)(b) to make an order, if it appears that such order is necessary to protect persons in the local government area et cetera. Under section 1(1)(a) it is necessary to make findings of fact. No such dual responsibility arises under section 8.

[42]At paragraph 37 of Clingham and McCann and others Lord Steyn focussed on the two tasks under section 1(1):

"If the House takes this view it will be sufficient for the magistrates, when applying section 1(1)(a) to be sure that the defendant has acted in an anti-social manner, that is to say, in a manner that caused or was likely to cause harassment ... The inquiry under section 1(1)(b), namely that such an order is necessary to protect persons from further anti-social acts by him, does not involve a standard of proof: it is an exercise of judgment or evaluation."

Conclusions in relation to the Article 6 submission

[43]I have no doubt that the decision as to whether or not to make a parenting order is an exercise of judgment or evaluation.

[44]Mr Crow's arguments successfully persuaded Lord Hope at paragraph 83 that the condition in section 1(1)(b) raises a question which is a matter for evaluation and assessment; so too are many judicial functions. Granting injunctions, licences, custody, awarding damages, sentencing call for no burden of proof, but for evaluation and assessment. A court's task in making a parenting order is clearly and precisely defined by Parliament and it involves evaluation and assessment.

[45]Mr Hardie submitted that we should give guidance to justices so that they could better perform their function. I decline to do so, not by reason of any timorous disposition, but because the statute gives to the Secretary of State no power to issue guidelines and, accordingly, it would be wrong for me to do so. The question to be asked of themselves by justices is prescribed by the statute. They must act on all relevant evidence before them, including the information about family circumstances, and reach a rational judgment. For my part, a requirement that they act with scrupulous fairness would add nothing. That is a standard to which all judges and justices should aspire in all their functions.

[46]The arguments based on Article 6 are, in my judgment, without merit. It is for the court to have strict regard to the statute and the evidence. Thereafter it is a matter of evaluation and judgment. Submissions in relation to Article 8

[47]In relation to Article 8 we were reminded by way of preamble by Mr Hardie of two basic principles. First, that there where is a prima facie interference with a right, it is for the state to show that any restriction on the exercise of the right concerned is justified according to the conditions set out under the second paragraph of each article. Because the state may interfere with the exercise of rights where these conditions are satisfied, the rights themselves must be broadly and purposively construed: Niemietz v Germany 16 EHRR 97. However, exceptions to the rights must be narrowly interpreted: Sunday Times v United Kingdom 2 EHRR 245. He also referred to Defreitas v Minister of Agriculture and Fisheries

[1991] AC 69

, in which Lord Clyde identified three criteria for determining the issue of proportionality in the context of statutory restrictions on a fundamental right: the court should ask firstly whether the legislative objective is sufficiently important to justify a fundamental right; two, whether the measures designed to meet the legislative objective are rationally connected to it; three, whether the reasons used to impair the right or freedom are no more than is necessary to accomplish that objective.

[48]The third criterion, approved in A

[2002] 1 AC 45

as the critical question by Lord Steyn, is the criterion principally relied upon by Mr Hardie. He submits that the level of intrusion into family life occasioned by parenting orders is far more than is necessary to achieve the objective, namely to prevent further offending by the child or young person. The requirement to leave the home to attend for counselling or guidance for two hours a week over a three month period is more than is necessary; it is a sledgehammer, he submits, to crack a nut. He complains that it is unreasonable that a parent cannot modify or direct his or her conduct so as to avoid being made the subject of an order, and that there is no requirement of fault on the parent's part. There is no reasonableness defence and no seriousness threshold.

[49]We were referred to Silver v United Kingdom

[1983] 5 EHRR 347

, in which the European Court stated that the law must be sufficiently precise to enable the citizen to regulate his conduct; he must be able to foresee the consequences of his actions. It is said on behalf of the claimant that the most fastidious parent may find himself or herself the subject of an order.

[50]We were also referred to Sunday Times v United Kingdom, where it was said by the European Court that the following are two of the requirements that flow from the expression prescribed by law: firstly, the law must be adequately accessible, the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case; secondly, a norm cannot be regarded as law unless it is formulated with sufficient precision to enable the citizen to regulate his conduct, he must be able, if need be with appropriate advice, to foresee to a degree that is reasonable in the circumstances the consequences which a given action may entail. Mr Hardie submits that even with best advice at hand, the most careful parent may be made the subject of a parenting order.

[51]Reliance on the same authority dictates at paragraph 9 that the expression "necessary" in a democratic society is not synonymous with indispensable, admissible, ordinary, useful, reasonable or desirable.

[52]In conclusion, Mr Hardie submitted that the parenting order provisions were incompatible with

Article 8 of the Convention

. The Secretary of State's response

[53]Mr Crow readily identified the three critical questions:(1) does the interference pursue a legitimate objective?;

(2) is it in accordance with the law?;

(3) is it necessary in a democratic society, is it proportionate?.

[54]As to legitimate objective, this has never been in issue. The objective is to prevent juvenile crime and thus legitimate. Mr Crow submits that it is in accordance with the law; that the provisions are contained in publicly available primary legislation; that the statutory regime does not create an unfettered discretion; that it defines with sufficient certainty the necessary pre-conditions to the making of an order (sections 8(1) and 8(6)), the purpose for which the order was made (section 8(6)), and the limits on the kinds of orders that may be made (sections 8(4), 8(7) and 9(4)).

[55]Reference is made to paragraph 88 of the judgment in Silver, where the court pointed out that many laws are inevitably couched in terms which to a greater or lesser extent are vague and whose interpretations and application are a matter of practice. Further, the court recognises that some degree of flexibility is required and the test of certainty does not mean that legislation must always be drafted in such a way as to define exhaustively the circumstances in which a power will be exercised.

[56]Mr Hardie had in fact acknowledged the need for flexibility, and it cannot be contended that there is any lack of clarity in defining the circumstances in which a parenting order will be made. The real area of contention in this application is whether parenting orders are necessary in a democratic society.

[57]We approach this topic adopting the three criteria identified by Lord Clyde in Defreitas.

[58](1) Is the legislative objective sufficiently important to justify limiting a fundamental right? There is manifestly a pressing social need to address the problems created by juvenile crime. We have been directed to the Audit Commission's publication of 1996 which recorded that a quarter of all crime was committed by those under 18, and the Home Office publication "Tackling Youth Crime 1997" indicated that youth crime was one of the most serious problems facing England and Wales today. I do not propose to rehearse those well researched documents. Of course, positive action was called for. No submission has been made to the contrary.

[59](2) Are the measures designed to meet the legislative objective rationally connected to it? There can be no doubt, nor is it disputed, that the introduction of parenting orders corresponds to the need to confront juvenile crime. The background to the legislation, rehearsed earlier in this judgment, establishes that proposition.

[60](3) Are the means used to impair the right or freedom any more than is necessary to accomplish that objective? In submitting that the measures are proportionate, Mr Crow submits, firstly, that the regime is purely preventive, designed to minimise the risk of future misconduct as opposed to a punitive regime after crime has been committed, it is prospective rather than retrospective; secondly, it is said that there are numerous safeguards built into the regime, namely the specific triggering pre-conditions in section 8(1), the restricted effect of the relevant conditions (section 8(6)), the restriction on the kind of orders that can be made (sections 8(4), 8(7) and 9(4)) and, finally, there are procedural safeguards including the right of appeal (sections 9(2), 9(3), 9(5) and section 10); thirdly the degree of interference with Article 8(1) is very limited in terms of its scope and duration, namely compliance for a maximum of 12 months and counselling for a maximum of once a week for a period not exceeding three months, when balanced with the importance of countering youth crime; finally, as indicated earlier in this judgment, there is compelling evidence by way of evaluation, case records and statistical analysis to demonstrate that parenting orders do in fact achieve their purpose in their aim of preventing re-offending. Conclusion in relation to Article 8

[61]I adopt the several reasons advanced by Mr Crow without modification. I have no difficulty in reaching a firm conclusion that parenting orders are necessary in a democratic society. Were I less convinced, I would, in any event, defer to Parliament - as Laws LJ described it in International Transport Roth v Secretary of State for the Home Department

[2002] EWCA Civ 158

, the "sovereign legislator". It, and not a written constitution, bears the ultimate mantle of democracy in the state.

[62]As Mr Crow points out in his argument, where the Convention itself requires that a balance be struck, more deference should be shown because parenting orders are designed to balance the competing interests identified in Article 8(2), namely the Community's right to protection of life, limb and property against the parent's rights to respect for private and family life. Further, the social policy is within Parliament's domain and within Parliament's expertise, and whilst Laws LJ prefers to articulate these two principles separately, for reasons of clarity they lose nothing by joinder in the context of the present subject matter. Parliament has given much time and consideration and drawn on expertise in its formulation of the present regime. Had deference been required, for my part it would most certainly have been forthcoming.

[63]Mr Crow confronted particular complaints made on behalf of the claimant. As to the assertion that there is no requirement for a finding of fault on the parent's part, Mr Crow observes, quite correctly, that the reason for making a parenting order is a risk of future misconduct by the child or young person, and the means of achieving that purpose is parental guidance.

[64]In relation to the complaint that there is no reasonableness defence, he pointed out that since section 8(6) requires the court to consider whether a parenting order is desirable in the interests of preventing future misconduct, if a parent has acted so reasonably that their parenting skills would not be improved by a parenting order, then they would be entitled to say that it was not desirable to make such an order. The Convention, in any event, does not require a defence of reasonableness to be available.

[65]Finally, in response to the complaint that there is no seriousness threshold for the child or young person's offence, it is observed that an offence by the child or young person is not a pre-condition to the making of an order, but, in any event, the seriousness of the offence is likely to be one of the factors taken into account in deciding whether a parenting order is desirable in the interests of preventing future misconduct. It answers by way of a knock out blow Mr Hardie's suggestion that a child or young person having committed a litter offence, the parent might be made the subject of a parenting order.

[66]Not every one of Mr Hardie's complaints has been specifically answered. That is for good reason. Several relate to the alleged misguided approach of courts in other cases, for example, in quoting from the Youth Justice Pilots Evaluation, some magistrates have tended to sit rather lightly on the definition of the word "parents", working from the view that all parents of young offenders need some assistance, meaning a parenting programme.

[67]This court, in this case, is only concerned with whether this claimant's Convention rights have been violated and the wider question of whether sections 8 to 10 of the Crime and Disorder Act 1998 are incompatible with the Convention. My answer to both questions is firmly in the negative. The irrationality of the parenting order

[68]I remind myself that we can only review an order of an inferior court if we conclude that it is perverse and that no reasonable court would have made such an order.

[69]In considering the question, would a parenting order be desirable in the interests of preventing M from committing any further offence, I have had regard to the following:(1) the facts stated earlier in this judgment;

(2) M's plea of not guilty;

(3) the fact that M admitted starting the altercation and that she participated in a fight - the issue concerned the nature and cause of the injury to the victim's head;

(4) the fact that the pre-sentence report stated that until the dispute with the neighbours was resolved "I believe [AM] would not be receptive or suitable for a parenting order at this time";

(5) the fact that M, at the date of the hearing before the magistrates, was 14 years and 4 months old and just 15 at the Crown Court, she was hitherto of exemplary character;

(6) the contents of the pre-sentence report;

(7) a reference from a Mr Poonen, who lives opposite, an ecologist, who described M as well-behaved and considerate;

(8) a school report indicating that M had matured greatly and her conduct had been very good, she is pursuing course work preparatory to her GCSE examinations;

(9) favourable references from a Mrs Ruglass and a Mr Hussan;

(10) a psychological assessment prepared by George Crowther, an educational psychologist, showing that M was of broad average intelligence with no abnormal features of personality and that post-16 she would benefit from attending a college of further education;

(11) a psychological assessment by Dr Kramer, consultant clinical psychologist, M had no anxiety or depression, she enjoyed reading books and had plans for educating herself further and getting a decent job.

[70]I have considered M's family circumstances and likely effect of the order on those circumstances. M is the middle of three children living at home with AM, their mother.

[71]I pay significant attention to the views of the writer of the pre-sentence report, a member of the Youth Offending Team who has had the advantage of interviewing both mother and daughter and observing the family circumstances. Her views are not of course decisive, but occasions are likely to be limited when a court decides that it is desirable to make a parenting order contrary to the views of those whose task it will be to administer the regime as the responsible officer. The same principle applies in relation to community rehabilitation orders.

[72]Every indication is that this offence is related to a long-standing neighbour dispute. In all other respects M's conduct has been exemplary. I do not consider it desirable that a parenting order should be used as a method of controlling or monitoring a neighbour dispute.

[73]Having regard to views expressed in the pre-sentence report that AM would not be receptive or suitable for a parenting order, and M's otherwise exemplary character, I do not consider it desirable to make a parenting order; indeed, I am of the view that no reasonable bench on the material before it, applying the proper test, would have made such an order.

[74]Accordingly, on the grounds of irrationality alone, I would make a quashing order in respect of the parenting order. I find no basis for determining that sections 8 to 10 of the Crime and Disorder Act 1998 are incompatible with the European Convention. The issue of compensation

[75]Section 137(1) of the Powers of the Criminal Courts (Sentencing) Act 2000 provides that where a child or young person is convicted of an offence in respect of which a fine may be imposed or a compensation or costs order may be made, and the court is of the opinion that the case would best be met by the imposition of such a fine, compensation or costs order, it shall order the parent or guardian to pay, unless it is satisfied that the parent or guardian cannot be found or that it would be unreasonable to make an order for payment having regard to the circumstances of the case.

[76]In his skeleton argument, Mr Hardie had contended that a section 137(1) order fell to be classified as part of criminal proceedings for the purposes of Article 6 and, accordingly, that the reverse burden of proof, so he asserted, was disproportionate and thus in breach of Article 6(2). In argument he expressly abandoned both contentions, and he was correct so to do. There can be no doubt that the making of a section 137 order does not involve the conviction of the parent on any criminal charge, and there is manifestly no reverse burden of proof in breach of Article 6(2); indeed, Article 6(2) is not engaged.

[77]The basis of the irrationality argument appears to be that AM was not in any way at fault, she was some distance from the offence and was in no way responsible.

[78]Where a child of 13 years of age is convicted of a criminal offence, it can be assumed, in the absence of evidence to the contrary, and there was no such evidence in the present case, that the finances of the child are dependent on the parent or guardian. There is specifically no requirement in the statute that the parent should be at fault; nor is there any requirement for any causal connection between the parent's conduct and the child's criminal offence. The policy underlying the section 137 regime, as described in the 1980 White Paper, Youth Offenders, is to achieve the recovery of fines, costs and compensation orders imposed on children and young persons in order to protect the public purse and/or, as in this case, the person in favour of whom the compensation order has been made. It is in the public interest that the financial penalty should be recovered from the parent unless there are special circumstances which make that result inappropriate.

[79]Reference has been made in skeleton arguments to two authorities, TA v Director of Public Prosecutions

[1997] 1 Cr App R (S) 1

and R v Sheffield Crown Court ex parte Clarkson

[1986] Cr App R (S) 454

, both cases in which courts concluded that circumstances rendered it unreasonable to make a section 137 order. In TA v DPP it was common ground that if the daughter had been living at home with her mother it would not have been unreasonable to make an order, and in the Sheffield case the mother had done all she could to keep her son from criminal ways and, because of her limited means, would have to repay £299 over two and a half years. In each case there was evidence from which the court was able to find circumstances making it unreasonable to make a section 137 order. No such circumstances are present in the instant case; indeed, none was urged before us.

[80]Accordingly, I am of the opinion that the application insofar as it relates to the section 137 order should fail.

LORD JUSTICE ROSE: I agree. This application therefore succeeds to this limited extent. On the ground of irrationality only, the parenting order is quashed.

[82]MR CROW: In that case I think the only consequential matter is the question of costs. The burden of the argument that obviously the intervening party came in to deal with was the general question of the application of the Act under the Convention, and on that the Secretary of State has wholly succeeded.

LORD JUSTICE ROSE: Is the claimant publicly funded?

[84]MR CROW: Apparently so.

LORD JUSTICE ROSE: So?

[86]MR CROW: So I imagine your Lordship would not be interested in making any immediately effective order.

LORD JUSTICE ROSE: I am sure that is right. Are you seeking an order?

[88]MR CROW: My Lord, no.

[89]MR HARDIE: My Lords, I do not know what the appropriate course is. Do I have to apply for an order for legal aid taxation, I am sorry --

LORD JUSTICE ROSE: I do not think you do, no.

[91]MR HARDIE: Thank you.